Full opinion text
MEMORANDUM AND ORDER TOWNES, District Judge: In January 2008, plaintiffs Sergeants Benevolent Association Health and Welfare Fund (“SBA”), New England Carpenters Health Benefits Fund (“NEC”) and Allied Services Division Welfare Fund (“ASD”) (collectively “Plaintiffs”) and others commenced this action on behalf of themselves and others similarly situated, principally alleging that defendants sanofi-aventis U.S. LLP and sanofi-aventis U.S., Inc. (collectively, “Defendants”) violated the Racketeer Influenced and Corrupt Organizations Act “(RICO”), 18 U.S.C. § 1961 et seq., and various state laws by misrepresenting the safety and efficacy of Ketek, a prescription antibiotic marketed by Defendants. In December 2011 — after this Court denied Plaintiffs’ motion to certify a nationwide class — Defendants moved for summary judgment. By order dated January 4, 2012, this Court referred the motion to Magistrate Judge Ramon E. Reyes (“Judge Reyes”) for a report and recommendation. On September 17, 2012, Judge Reyes issued his report and recommendation (the “R & R”)—Sergeants Benev. Ass’n Health & Welfare Fund v. Sanofi-Aventis U.S., LLP, No. 08-CV-0179 (SET) (RER), 2012 WL 4336218 (E.D.N.Y. Sept. 17, 2012) (“Sergeants III”)—which recommends that Defendants’ motion for summary judgment be granted in its entirety. On October 4, 2012, Plaintiffs collectively filed objections to almost every aspect of the R & R. For the reasons set forth below, this Court, having conducted a de novo review of those portions of the R & R to which Plaintiffs object, now adopts Judge Reyes’ R & R except to the extent that it recommends limiting Plaintiffs’ cause of action for violations of various consumer protection statutes to claims brought pursuant to the laws of Plaintiffs’ home states of New York, Massachusetts and Illinois. However, Defendants are granted leave to file a second motion for summary judgment once Plaintiffs clarify the scope of their state-law claims under Counts III and IV of the Second Amended Complaint. BACKGROUND In setting forth the facts of this case, the R & R incorporates by reference a much more detailed statement of facts contained in Judge Reyes’ report and recommendation on Plaintiffs’ motion for class certification (the “Prior R & R”): Sergeants Benev. Ass’n Health & Welfare Fund v. Sanofi-Aventis U.S., LLP, No. 08-CV-0179 (SLT) (RER), 2011 WL 824607 (E.D.N.Y. Feb. 16, 2011) (“Sergeants I”), adopted, 2011 WL 1326365 (E.D.N.Y. Mar. 30, 2011) (“Sergeants II”). The Prior R & R itself largely relied on facts set forth in Plaintiffs’ Second Amended Complaint and Plaintiffs’ Proffer of Facts in Support of the Motion for Class Certification (“Plaintiffs’ Proffer”). The following summary of the facts in this case relies, in part, on the Prior R & R. As indicated by the citations contained in the Prior R & R, not all of these facts may be undisputed. However, to the extent that the facts are disputed, the following summary is based on Plaintiffs’ version of events. Defendants are United States subsidiaries of sanofi-aventis SA, a French pharmaceutical firm (Sec. Am. Complt., ¶¶ 5-6; Answer, ¶¶ 5-6). According to Defendants, the corporation named by Plaintiffs as Sanofí-Aventis U.S., Inc. is actually named sanofi-aventis U.S. Inc. and is not a proper party to this action (Answer, p. 2); the entity named by Plaintiffs as Sanofi-Aventis U.S., LLP, is actually a limited liability company, sanofi-aventis U.S. LLC (id., at 1); and some of the acts which Plaintiffs attribute to Defendants were actually committed by a related entity, Aven-tis Pharmaceutical, Inc. (“API”) (see id., ¶¶ 5, 14-16). For purposes of this memorandum and order, this Court will attribute acts and omissions on the part of one or more of these related entities to Defendants so as to avoid unnecessary complexity. Sometime prior to March 2000, Defendants developed a prescription antibiotic, telithromycin, which was marketed under the brand name Ketek (Sec. Am. Complt., ¶ 10; Answer, ¶ 10). Early in 2000, Defendants submitted a New Drug Application (“NDA”) to the Office of New Drugs at the United States Food and Drug Administration (“FDA”), seeking approval to sell Ke-tek in the United States (Sec. Am. Complt., ¶ 12; Answer, ¶ 12). That NDA sought to have Ketek approved for the treatment of four specific conditions or “indications”: acute bacterial sinusitis (“ABS”), acute exacerbation of chronic bronchitis (“AECB”), community-acquired pneumonia (“CAP”), and tonsillopharyngi-tis (id.). In June 2001, the FDA determined that it would not approve Ketek for treatment of tonsillopharyngitis and would only approve Ketek for the treatment of the other three indications if Defendants provided more evidence of Ketek’s safety and efficacy (Sergeants I, 2011 WL 824607, at *1 (citing Plaintiffs’ Proffer at 28)). To provide this evidence, Defendants commissioned a large clinical study known as “Study 3014” (Sec. Am. Complt., ¶ 14; Answer, ¶ 14). Defendants hired Pharmaceutical Product Development, Inc. (“PPD”), a contract research organization, to monitor the study and contracted with another entity, The Copernicus Group, Inc. (“Copernicus”), to monitor patient safety (Sergeants I, 2011 WL 824607, at *2). Early in the course of its evaluation, PPD raised concerns regarding the integrity of data collected by the office of Dr. Marie Anne Kirkman Campbell, a physician who treated the largest number of patients in the study (Sergeants I, 2011 WL 824607, at *2 (citing Plaintiffs’ Proffer at 31)). Thereafter, the FDA’s Office of Criminal Investigation (“the OCI”) determined that there had been misconduct and protocol violations at several other sites with high patient enrollment (id. (citing Plaintiffs’ Proffer at 38-39)). However, after the FDA again declined to approve Ketek and requested more information regarding Study 3014, Defendants issued a report that, Plaintiffs claim, not only omitted any mention of the study’s problems but falsely represented that the study had been conducted in accordance with good clinical practice (id. (citing Sec. Am. Complt., ¶26)). According to Plaintiffs, Defendants also claimed Ketek’s safety and efficacy profile matched that of other antibiotics, even though they (i) knew “that Study 3014 actually showed that Ketek was almost three times more likely to result in a possibly medication-related, serious adverse event; (ii) knew that Ketek was neither more efficacious nor as safe as widely available alternatives; and (iii) knew that claims that Ketek did better against antibiotic resistant pathogens were not scientifically supported” (id. (citing Plaintiffs’ Memorandum In Support Of Class Certification at 3, nn. 10-14)). In April 2004, after receiving Defendants’ report, the FDA approved Ketek for three indications: ABS, AECB and CAP (Defendants’ Statement of Undisputed Material Facts in Support of their Motion for Summary Judgment (“Defendants’ 56.1”), ¶ 1; Plaintiffs’ Response to Defendants’ Local Rule 56.1 Statement of Undisputed Facts (“Plaintiffs’ 56.1”), ¶ 1). Immediately thereafter, Defendants launched a marketing campaign, seeking to have Ketek prescribed for “off-label” uses in addition to the three indications for which it was approved (Sergeants I, 2011 WL 824607, at *3). The parties agree that physicians are legally permitted to prescribe Ketek for an indication for which it was never approved, and that physicians frequently did so (Defendants’ 56.1, ¶ 50; Plaintiffs’ 56.1, ¶ 50). That marketing campaign, which was aimed at physicians and other members of the healthcare community, initially proved successful. According to the Prior R & R, Ketek was prescribed over 3 million times in 2005 and had been prescribed over 6.1 million times by 2006 (Sergeants I, 2011 WL 824607, at *3). However, Ketek sales began to decline in January 2006 after the FDA released a public health advisory that warned physicians to monitor Ketek patients for potential liver problems (id.). In June 2006, after “[twenty-three] cases of acute severe liver injury and [twelve] cases of acute liver failure, [four] of them fatal, had been linked to Ketek,” Defendants changed Ketek’s label to include additional warnings, precautions, contraindications, and adverse reactions pursuant to FDA requirements and sent letters to healthcare professionals about these risks (id. (citing Plaintiffs’ Proffer at 81) (brackets in Sergeants I)). In early February 2007, after Ketek had been “implicated in [fifty-three] cases of hepatotoxic effects” (id. (brackets in Sergeants I)), the FDA withdrew its approval for two indications: ABS and AECB (Defendants’ 56.1, ¶ 3; Plaintiffs’ 56.1, ¶ 3). Even though Ketek remained an FDA-approved drug for the treatment of CAP, Defendants thereafter ceased actively promoting Ketek in the United States (Defendants’ 56.1, ¶¶4-5; Plaintiffs’ 56.1, ¶¶ 4-5). The Plaintiffs Herein Plaintiffs are health benefit providers (“HBPs”), which provide health care benefits, including prescription drug benefits, to their members or beneficiaries. SBA, which has its principal place of business in New York, is a not-for-profit benefit fund, established and maintained to provide comprehensive health care benefits to active and retired sergeants of the New York City Police Department and their dependents (Sec. Am. Complt. at ¶ 2; Defendants’ 56.1, ¶ 8; Plaintiffs’ 56.1, ¶ 8). NEC has its principal place of business in Massachusetts and is an employee welfare benefit plan, as defined in section 3(1) of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002(1) (Sec. Am. Complt. at ¶ 3; Defendants’ 56.1, ¶ 9; Plaintiffs’ 56.1, ¶ 9). ASD, which has its principal place of business in Illinois, is a multiemployer employee welfare benefit plan, within the meaning of section 3(37) of ERISA, 29 U.S.C. § 1002(37) (Sec. Am. Complt. at ¶ 4; Defendants’ 56.1, ¶ 10; Plaintiffs’ 56.1, ¶ 10). Plaintiffs and other HBPs are also called third-party payors or “TPPs” because they pay certain medical costs on behalf of their members. However, the decision regarding what medications will be prescribed for Plaintiffs’ members is made by the members’ physicians. The parties agree that a variety of factors contribute to a physician’s decision, including patient-specific factors and the physician’s own experience with, and knowledge about, the various options (Defendants’ 56.1, ¶¶ 38-41; Plaintiffs’ 56, 1, ¶¶ 38-41). Plaintiffs maintain that safety is “paramount” concern which impacts every prescription decision (Plaintiffs’ 56.1, ¶¶ 38-41), but neither Plaintiffs nor Defendants maintain that safety is the sole determinant. Plaintiffs and Defendants agree that Ketek has competitors, some of which are more expensive than Ketek and some of which are lower-priced generics (Defendants’ 56.1, ¶ 48; Plaintiffs’ 56.1,¶ 48). In addition, the parties agree that those physicians who elect not to prescribe Ketek for AECB and ABS are likely to prescribe one of these competing antibiotics (Defendants’ 56.1, ¶ 47; Plaintiffs’ 56.1,¶ 47). The prescription drug benefits offered by Plaintiffs are administered by Pharmacy Benefit Managers (“PBMs”). In addition, at least one of the Plaintiffs — NEC— has delegated to a PBM the decision regarding what medications to include in the “formulary” — the list of drugs for which the TPP will pay (Defendants’ 56.1, ¶ 13; Plaintiffs’ 56.1, ¶ 13). PBMs typically use Pharmacy and Therapeutics (“P & T”) Committees comprised of pharmacists, physicians and other healthcare professionals to determine what medications to include (Defendants’ 56.1, ¶ 14; Plaintiffs’ 56.1,¶ 14). If a particular drug is prescribed for a plan’s participant and is included in a plan’s formulary, the HBP pays for that prescription in an amount determined by the formulary. While Plaintiffs all included Ketek -in their formularies at the time relevant to this action, not all Plaintiffs employed the same type of formulary or provided the same extent of coverage. Two of the three Plaintiffs in this case — NEC and ASD— employed a “three tiered formulary,” in which a beneficiary’s co-payment for a particular drug depends on the tier in which that drug is placed (Defendants’ 56.1, ¶ 24; Plaintiffs’ 56.1, ¶ 24). The first tier, in which co-payments are the lowest, typically includes generic drugs (Defendants’ 56.1,¶ 23; Plaintiffs’ 56.1, ¶ 23). The second tier typically includes preferred brand-name drugs and the third tier includes non-preferred brand-name drugs (id.). The third Plaintiff, SBA, did not employ a tiered formulary (Defendants’ 56.1,¶ 25; Plaintiffs’ 56.1, ¶ 25). The degree to which Plaintiffs covered prescriptions for Ketek is unclear. The parties agree that, between 2002 and 2008, Sav-Rx provided formulary services to ASD (Defendants’ 56.1, ¶ 26; Plaintiffs’ 56.1,¶ 26). However, the corporate representative provided by ASD during discovery did not know the tier in which Ketek appeared, or whether Ketek had been moved from one tier to another during the time in which Sav-Rx served as PBM (Defendants’ 56.1, ¶ 27; Plaintiffs’ 56.1, ¶ 27). ASD switched to another PBM in 2008, which listed Ketek in Tier 2 as of March 2010 (Defendants’ 56.1, ¶¶ 28-29; Plaintiffs’ 56.1, ¶¶ 28-29). NEC has employed at least two different PBMs since June 1, 2004 (Defendants’ 56.1,¶ 31; Plaintiffs’ 56.1, ¶ 31). Although Ketek has always remained a covered drug under NEC’s plan, it was apparently moved to Tier 3 — the tier with the highest co-payment — at some point in December 2006 (Defendants’ 56.1, ¶ 32; Plaintiffs’ 56.1,¶ 32). In contrast, the parties agree that SBA’s coverage of Ketek has remained the same since the drug was approved by the FDA in 2005 (Defendants’ 56.1, ¶ 30; Plaintiffs’ 56.1, ¶ 30). However, the parties disagree about the degree of coverage. Defendants maintain that SBA’s formulary covered all FDA-approved drugs and did not distinguish between preferred, non-preferred and generic drugs (Defendants’ 56.1, ¶ 25). In contrast, Plaintiffs maintain that, at all relevant times, SBA employed a “mandatory generic program” to “promote the use of costreffective generic alternatives” (Plaintiffs’ 56.1, ¶ 25). However, SBA did not cease paying for brand-name drugs that have a generic equivalent until January 1, 2009 (Id.). The Instant Action The three Plaintiffs and Louisiana Attorney General Charles C. Foti, Jr. — acting in his official capacity and on behalf of, inter alia, the Louisiana Department of Health and Hospitals — commenced this action against Defendants on January 14, 2008. The original complaint sought to bring a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of “a class of consumers and third-party payors that have paid or incurred costs for ... Ketex” (Complaint at ¶ 2). In an amended complaint filed approximately two weeks later, the proposed class was amended to omit “consumers,” The amended complaint identified the class that Plaintiffs sought to represent as “consisting of all health insurance companies, third-party administrators, health maintenance organizations, self-funded health and welfare benefit plans, third-party payors and any other health benefit provider, including governmental entities, which paid or incurred costs for ... Ketex” (Am. Complt., ¶ 1). The original complaint and the amended complaint both alleged that this Court had subject-matter pursuant to 28 U.S.C. § 1332(d)(2), which provides for original jurisdiction over class actions in which the matter in controversy exceeds $5 million and “any member of a class of plaintiffs is a citizen of a State different from any defendant” (Complt., ¶ 9; Am. Complt. at ¶ 9). The amended complaint raised only two causes of action or “counts,” both of which were based on violations of state law. The first cause of action alleged that Defendants engaged in unfair competition or unfair or deceptive acts or practices in violation of various state consumer protection statutes, including laws of New York, Massachusetts and Illinois — the States in which Plaintiffs are based. The second cause of action alleged unjust enrichment. On May 21, 2008, Attorney General Foti filed a notice of voluntary dismissal, dismissing the Louisiana plaintiffs’ claims against Defendants without prejudice. About two weeks later, Plaintiffs filed a Second Amended Complaint. That pleading not only deleted all references to the Louisiana defendants but also added two RICO claims: one count alleging a substantive violation of 18 U.S.C. § 1962(c), and a second count alleging a RICO conspiracy in violation of 18 U.S.C. § 1962(d). The substantive RICO claim alleges that the “association-in-fact” between Defendants, PPD, and Copernicus constituted a criminal enterprise, which Plaintiffs dub the “study 3014 Enterprise,” According to Plaintiffs, the members of the criminal enterprise had “a common purpose — to enable Sanofi-Aventis to fraudulently represent that Ketek had valid regulatory approval for broad antibiotic uses” (Sec. Am. Complt., ¶ 74). To that end, they participated in a criminal scheme “calculated to ensure that Ketek was approved, and approved for as many indications as possible, despite the lack of adequate safety studies, the lack of superior efficacy and inferi- or safety profile compared to other safer, less expensive antibiotics already sold in the US. market” (Id. at ¶ 80). In further-anee of the scheme, Defendants allegedly “conducted and participated in the affairs of the study 3014 Enterprise through patterns of racketeering activity,” including “acts indictable under 18 U.S.C. § 1341 (mail fraud), § 1343 (wire fraud), § 1512 (tampering with witnesses), and § 1952 (use of interstate facilities to conduct unlawful activity)” (Sec. Am. Complt., ¶ 77) (parentheses in original). The RICO conspiracy claim alleges that the Defendants violated 18 U.S.C. § 1962(d) by conspiring to violate § 1962(c) in the manner described above. According to the Second Amended Complaint, the “object of this conspiracy was and is to conduct or participate in, directly or indirectly, the conduct of affairs of the study 3014 Enterprise ... through a pattern of racketeering activity” (Sec. Am. Complt., ¶ 88). In furtherance of the conspiracy, Defendants allegedly committed numerous overt acts, including “(a) Multiple instances of mail and wire fraud violations of 18 U.S.C. §§ 1341 and 1342; (b) Multiple instances of mail fraud violations of 18 U.S.C. §§ 1341 and 1346; (c) Multiple instances of wire fraud violations of 18 U.S.C. §§ 1341 and 1346; and (d) Multiple instances of unlawful activity in violation of 18 U.S.C. § 1952 (Sec. Am. Complt., ¶ 92) (parentheses and brackets added). In May 2010, Plaintiffs moved to certify a class including all TPPs which paid or incurred costs for Ketek between April 1, 2004, and February 12, 2007. This Court referred the motion to Judge Reyes for a report and recommendation. On February 16, 2011, Judge Reyes issued the Prior R & R — Sergeants I — recommending that class certification be denied because Plaintiffs could not establish through generalized proof that Defendants’ alleged RICO violations caused Plaintiffs’ alleged injuries. In reaching that determination, Judge Reyes principally relied on UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121 (2d Cir.2010) (“Zyprexa”) — a case which had been decided approximately six months before Judge Reyes issued his Pri- or R & R. Plaintiffs timely objected to portions of the Prior R & R. However, in a memorandum and order dated March 30, 2011— Sergeants II — this Court concluded that those objections were without merit and adopted the Prior R & R in its entirety. Plaintiffs then petitioned the Second Circuit Court of Appeals for leave to appeal this Court’s order on class certification, but that petition was denied on July 28, 2011, on the ground that immediate appeal was unwarranted. Defendants’ Motion for Summary Judgment On December 22, 2011, Defendants moved for summary judgment with respect to all four causes of action or “counts” listed in the Second Amended Complaint. Defendants’ motion essentially consists of two parts, which are discussed separately and in some detail in the Discussion section below. First, Defendants argue that the RICO claims set forth in Counts I and II fail as a matter of law because Plaintiffs cannot prove causation under RICO and cannot establish that they themselves suffered any injury as result of the alleged RICO violations. Second, Defendants argue that Plaintiffs’ state-law claims fail as a matter of law because Plaintiffs cannot prove a violation of any of the state consumer protections statutes listed in Count III of the Second Amended Complaint and cannot make out unjust enrichment under New York, Massachusetts or Illinois law. On January 4, 2012, the Court referred Defendants’ motion for summary judgment to Judge Reyes for a report and recommendation. On September 17, 2012, Judge Reyes issued the R & R—Sergeants III— in which he recommends that Defendants’ motion be granted in its entirety. On October 4, 2012, Plaintiffs collectively filed objections to the R & R, specifically addressing almost every portion of the R & R. Judge Reyes’ recommendations with respect to each portion of Defendants’ motion and Plaintiffs’ objections thereto are discussed below. DISCUSSION I. Standards of Review In reviewing a plaintiffs objection to a report and recommendation issued by a magistrate judge, the district court applies the standard of review set forth in 28 U.S.C. § 636(b)(1) and Rule 72(b)(3) of the Federal Rules of Civil Procedure. Under both provisions, a district court is to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); accord Fed.R.Civ.P. 72(b)(3). Upon de novo review, the district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). A district court, however, is not required to review the factual or legal conclusions of the magistrate judge as to those portions of a report and recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). In conducting de novo review of those portions of the R & R which recommend granting summary judgment, this Court is mindful that summary judgment is appropriate only when “there is no genuine issue as to any material fact and the movant party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[Genuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, ie., whether it concerns facts that can affect the outcome under the applicable substantive law.” Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir.1999) (internal quotation marks omitted; brackets added). The moving party bears the burden of showing that there is no genuine issue of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the movant meets this burden, the non-movant must set forth specific facts showing that there is a genuine issue for trial. Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990); see Fed.R.Civ.P. 56(e). The non-movant cannot avoid summary judgment “through mere speculation or conjecture” or “by vaguely asserting the existence of some unspecified disputed material facts” Western World, 922 F.2d at 121 (internal quotations and citations omitted). Moreover, the disputed facts must be material to the issue in the case, in that they “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. When evaluating a motion for summary judgment, “[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor.” L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 87 (2d Cir.1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). “No genuine issue exists if, on the basis of all the pleadings, affidavits and other papers on file, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, it appears that the evidence supporting the non-movant’s case is so scant that a rational jury could not find in its favor.” Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir.1996). “If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998) (quoting Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505) (brackets in Scotto). II. The RICO Claims A. Defendants’ Motion for Summary Judgment on Counts I and II In the first portion of their motion for summary judgment, Defendants focus primarily on causation, one of the elements of a RICO claim. Defendants note that, in order to prove this'element, Plaintiffs must prove that the predicate acts underlying the RICO violations alleged in Counts I and II of the Second Amended Complaint were both the but-for cause and proximate cause of an injury to Plaintiffs. Defendants’ Memorandum of Law in Support of their Motion for Summary Judgment (“Defendants Memo”) at 9. Citing to Zyprexa, Defendants argue that Plaintiffs cannot prove but-for causation through generalized proof, since the individual physicians’ decisions to prescribe Ketek for Plaintiffs’ beneficiaries were based on many factors and not solely on Plaintiffs’ exaggerated claims regarding Ketek’s safety and efficacy. Id. at 10. Defendants maintain that “for each Ketek prescription that allegedly caused Plaintiffs injury,” Plaintiffs have to prove that the “physician would not have prescribed Ketek but for the Defendants’ alleged fraud.” Id. at 11. In addition, Defendants argue that Plaintiffs cannot establish proximate causation through generalized proof. Defendants note that a member’s physician’s decision to prescribe Ketek would not result in injury to a Plaintiff unless Ketek was included in that Plaintiffs’ formulary. Id. at 12. Defendants assert that “to prove RICO causation, Plaintiffs must ... prove that Defendants’ alleged fraud caused the P & T Committees to approve the use and reimbursement of Ketek in a manner that was different from what would have occurred absent Defendants’ alleged fraud” and “prove that the P & T Committees’ decisions that were based on Defendants^] alleged fraud actually resulted in Plaintiffs paying for more Ketek prescriptions than they otherwise would have.” Id. at 12-13. Defendants then argue that there is no evidence to prove that Plaintiffs’ PBMs relied on Defendants’ alleged fraud in making formulary decisions regarding Ketek and that generalized proof on this issue will not suffice. Id. at 13-15. Finally, Defendants contend that Plaintiffs cannot establish that they were injured as a result of the RICO violations unless “they can prove that they made a prescription drug payment that they would not have made absent Defendants’ alleged fraud.” Id. at 17. Defendants note that “[i]t is undisputed that, had physicians not prescribed Ketek for AECB and ABS, they likely would have prescribed some other antibiotic,” id., and that “Plaintiffs admit that several of the alternative^] ... were more expensive than Ketek.” Id. at 18. Again relying on Zyprexa, Defendants assert that Plaintiffs cannot prove by common evidence what antibiotic would have been prescribed in lieu of Ketek. Defendants note that Plaintiffs do not offer any individualized proof, but instead assume that “every prescription for a non-CAP indication caused the class members injury in an amount equal to the amounts they paid for the Ketek prescriptions.” Id. (emphasis in original). B. Plaintiffs’ Opposition In their Opposition to Defendants’ Motion for Summary Judgment (“Plaintiffs’ Opposition”), Plaintiffs acknowledge that, in order to establish RICO causation, Plaintiffs must establish a “sufficiently direct” relationship between Defendants’ alleged RICO violations and Plaintiffs’ alleged injury. Plaintiffs’ Opposition at 10. However, Plaintiffs maintain that, despite the presence of other factors in the causal chain, a sufficiently direct relationship may exist “so long as the plaintiffs injury was ‘a foreseeable and natural consequence of the defendant’s misconduct.” Id. (citing Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 658, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008)). Plaintiffs emphasize that Bridge and other Supreme Court cases establish that plaintiffs need not prove that they themselves relied on Defendants’ misrepresentations in order to make out RICO causation. Id. at 11. Plaintiffs assert that Zyprexa — the Second Circuit case on which Defendants rely and on which Judge Reyes relied in recommending that this Court deny Plaintiffs’ motion for class certification — was incorrectly decided. Specifically, Plaintiffs assert that the Second Circuit “misreads” Hemi Group LLC v. City of New York, 559 U.S. 1, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010)—the most recent of the Supreme Court’s four opinions on RICO causation — in holding that a physician’s prescribing decision interrupted the causal chain between a pharmaceutical company’s misrepresentations and a TPPs injuries. Plaintiffs’ Opposition at 14. Plaintiffs read Zyprexa as holding that “independent actions” of third or fourth parties render the relationship between the company’s wrongdoing and the TPPs’ injuries insufficiently direct, and assert that Hemi Group held only that “there is no proximate cause when those non-party actions are ‘independent’ of the RICO scheme.” Plaintiffs’ Opposition at 14. Plaintiffs assert that this case is analogous to Desiano v. Warner-Lambert Co., 326 F.3d 339 (2d Cir.2003), and BCS Services, Inc. v. Heartwood 88, LLC, 637 F.3d 750 (7th Cir.2011)—cases in which courts found RICO causation under facts which, Plaintiffs assert, are similar to the facts herein. Plaintiffs’ Opposition at 15. Plaintiffs concede that physicians may consider individual factors in determining what medication to prescribe, but argue safety considerations lie at the “heart of every prescription decision.” Plaintiffs’ Opposition at 17. Plaintiffs reason that Defendants’ “omission of critical health risk information necessarily affected, and was a substantial contributing factor for, every prescription decision by a physician as well as Plaintiffs’ coverage and payment decisions.” Id. at 18. Plaintiffs do not specifically address Defendants’ claims that Plaintiffs have failed to prove that Defendants’ alleged misconduct affected the PBMs’ decision making, arguing that “[wjhere Ketek existed on Plaintiffs’ for-mularies is irrelevant.” Id. at 16 (brackets added). Plaintiffs argue that what is relevant is that “Plaintiffs paid for Ketek prescriptions that would not have been written but for [Defendants’] fraud.” Id. (brackets added). In support of the latter proposition, Plaintiffs cite to testimony from their expert, Dr. Meredith Rosenthal, for the proposition that “the most important factor [is] that [Ketek] went from a blockbuster drug within eighteen months to virtually zero.” Id. at 17 (brackets in original). Plaintiffs note that their own experiences also support this proposition, noting that SBA paid for nearly 1,000 Ke-tek prescriptions between 2004 and the end of 2006, 24 prescriptions in 2007, and no prescriptions at all in 2008. Id. C. Judge Reyes ’ Recommendations In his R & R, Judge Reyes concludes that “Plaintiffs’ RICO claims fail as a matter of law” because Plaintiffs cannot establish causation, an essential element of such claims. Sergeants III, 2012 WL 4336218, at *4. Quoting Zyprexa, Judge Reyes notes that in order to make out a RICO claim, a plaintiff must establish, inter alia, that the RICO violation was the proximate cause of plaintiffs injury. In the Civil RJCO context, proximate causation requires a “direct relationship between the plaintiffs injury and the defendant’s injurious conduct.” Id. at *3 (quoting Zyprexa, 620 F.3d at 132). However, Judge Reyes holds that, in this case as in Zyprexa, “ ‘the independent actions of prescribing physicians’ interrupt the causal relationship between the predicate act and Plaintiffs’ harm, thereby ‘thwart[ing] any attempt to show proximate cause through generalized proof,”’ Id. (quoting Zyprexa, 620 F.3d at 135) (brackets in Sergeants III). Construing Zyprexa as “recogniz[ing] that prescribing decisions are based, to varying degrees, on factors independent of the alleged misrepresentation,” id. at *4, Judge Reyes concludes that individualized proof is required to show proximate cause under RICO and that “Plaintiffs’ generalized proof is insufficient.” Id. The R & R specifically addresses some of Plaintiffs’ arguments in opposition to summary judgment. First, Judge Reyes rejects Plaintiffs’ contention that “a party who suffers an injury that is a ‘foreseeable and natural result’ of a defendant’s conduct may satisfy RICO causation even where intervening factors are present.” Id. at *3. Judge Reyes notes that the Supreme Court has emphasized that “in the RICO context, the focus is on the directness of the relationship between the conduct and the harm,” rather than on foreseeability. Id. (quoting Hemi Group, 559 U.S. at 12, 130 S.Ct. 983). Second, Judge Reyes responds to Plaintiffs’ assertion that Zyprexa “misreads” the Supreme Court’s decision in Hemi Group by noting that “district courts are bound ‘to follow controlling precedents of the courts of appeals for their circuits.’ ” Id. (quoting Jackson v. Good Shepherd Servs., 683 F.Supp.2d 290, 292 (S.D.N.Y.2009)). Third, in response to Plaintiffs’ argument that “Defendants’ alleged omission of critical health information necessarily affected every physician’s prescribing decision because physicians always consider safety in making treatment decisions,” id. at *4, the magistrate judge notes that “[although safety may be a fundamental consideration in a physician’s prescription decision,” the Second Circuit has recognized that “physicians ... make prescribing decisions based on a multitude of factors,” and “that prescribing decisions are based, to varying degrees, on factors independent of the alleged misrepresentation.” Id. D. Plaintiffs’ Objections Plaintiffs objeqt to Judge Reyes’ recommendation that their RICO claims be dismissed, relying on Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008), for the proposition that RICO’s proximate causation requirement can be “satisfied where the plaintiffs injury was a foreseeable and natural result of the defendant’s conduct, even where other actors served as links in the causal chain.” Plaintiffs’ Objections to the Sept. 17, 2012, Report & Recommendation (“Objections”) at 7. Asserting that this case “parallels BCS Services ” — a Seventh Circuit case which the Second Circuit has allegedly cited with approval — Plaintiffs argue that BCS Services implies that the intervening acts of third parties do not' necessarily “break the chain of causation” when a “plaintiff presents evidence that he suffered the sort of injury that would be the expected consequence of the defendant’s wrongful conduct.” Id. at 10-11. Plaintiffs distinguish Hemi Group, noting that the plaintiffs injury in that case was “unrelated to the defendant’s fraud.” Id. at 12. Plaintiffs also assert that “[njeither RICO nor any rule of civil procedure or evidence bars the use of aggregate evidence” in this case. Id. at 13. Plaintiffs assert that Defendants’ “omission of critical safety information about Ketek’s serious liver risks affected all doctors and all Ketek prescription decisions for sinusitis and bronchitis indications at issue,” claiming that prescriptions for those two indications “completely disappeared” once the liver risks were disclosed. Id. at 14 (emphasis in original). Plaintiffs further assert that the R & R implies that “the only way to show marketing fraud ... is to drag each and every doctor into court to talk about each and every prescription decision he or she made to determine whether [Defendants’] omission of critical safety information had any effect on each decision ...,” id., and that this would be practically impossible. E. Discussion The RICO claims set forth in Plaintiffs’ first two causes of action are brought pursuant to 18 U.S.C. § 1964(c), which provides a private right of action to “[a]ny person injured in his business or property by reason of a violation of [Title 18,] section 1962” of the United States Code. The first cause of action alleges that Defendants violated the 18 U.S.C. § 1962(c), which makes it “unlawful for any person employed by or associated with” an enterprise engaged in or affecting interstate or foreign commerce “to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity .... ” The second cause of action alleges that Defendants violated 18 U.S.C. § 1962(d) by conspiring to violate § 1962(c) in the manner described above. The Supreme Court has recognized that language of § 1964(c) “can ... be read to mean that a plaintiff is injured ‘by reason of a RICO violation, and therefore may recover, simply on showing that the defendant violated § 1962, the plaintiff was injured, and the defendant’s violation was a ‘but for’ cause of plaintiffs injury.” Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 265-66, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992). However, in Holmes, the Supreme Court expressly declined to give the language “such an expansive reading,” finding it very unlikely that “Congress meant to allow all factually injured plaintiffs to recover.” Id. at 266, 112 S.Ct. 1311. Rather, the Holmes Court — like many Circuit Courts of Appeals that had previously considered the issue, id. at n. 11 (citing, inter alia, Sperber v. Boesky, 849 F.2d 60 (2d Cir.1988))—held that not mere factual, but proximate, causation is required. Id. at 268, 112 S.Ct. 1311. The Holmes Court “use[d] ‘proximate cause’ to label generically the judicial tools used to limit a person’s responsibility for the consequences of that person’s own acts.” Id. at 268, 112 S.Ct. 1311. Thus, “[p]roximate cause for RICO purposes ... should be evaluated in light of its common-law foundations.... ” Hemi Group, 559 U.S. at 9, 130 S.Ct. 983. However, “RICO causation is a concept distinct from ‘proximate causation as that term is used at common law.’ ” McBrearty v. Vanguard Group, Inc., 353 Fed.Appx. 640, 642 n. 1 (2d Cir.2009) (summary order) (quoting Abrahams v. Young & Rubicam Inc., 79 F.3d 234, 237 (2d Cir.1996)). “The concepts of direct relationship and foreseeability are ... two of the ‘many shapes [proximate cause] took at common law,’ ” Hemi Group, 559 U.S. at 12, 130 S.Ct. 983 (quoting Holmes, 503 U.S. at 268, 112 S.Ct. 1311) (brackets in Hemi Group), and “foreseeability is often the test of proximate causation at common law.” McBrearty, 353 Fed.Appx. at 642 n. 1 (citing Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 100 (1928)). However, forseeability is not the focus of the proximate cause determination in RICO cases. Rather, “the focus is on the directness of the relationship between the conduct and the harm.” Hemi Group, 559 U.S. at 12, 130 S.Ct. 983. In analyzing whether there is proximate cause in the RICO context, the Supreme Court has placed “particular emphasis on the ‘demand for some direct relation between the injury asserted and the injurious conduct alleged,’” Bridge, 553 U.S. at 654, 128 S.Ct. 2131 (quoting Holmes, 503 U.S. at 268, 112 S.Ct. 1311), stating that “[w]hen a court evaluates a RICO claim for proximate causation, the central question it must ask is whether the alleged violation led directly to the plaintiffs injuries.” Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 461, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006). There are three rationales for this emphasis on a direct relationship between the defendant’s wrongdoing and the plaintiffs’ injury. As the Supreme Court has explained: The direct-relation requirement avoids the difficulties associated with attempting “to ascertain the amount of a plaintiffs damages attributable to the violation, as distinct from other, independent, factors,” Holmes, 503 U.S., at 269, 112 S.Ct. 1311; prevents courts from having “to adopt complicated rules apportioning damages among plaintiffs removed at different levels of injury from the viola-tive acts, to obviate the risk of multiple recoveries,” ibid.; and recognizes the fact that “directly injured victims can generally be counted on to vindicate the law as private attorneys general, without any of the problems attendant upon suits by plaintiffs injured more remotely,” id., at 269-270, 112 S.Ct. 1311 Bridge, 553 U.S. at 654-55, 128 S.Ct. 2131. Because “[pjroximate cause ... is a flexible concept that does not lend itself to a black-letter rule that will dictate the result in every case,” id. at 654, 128 S.Ct. 2131 (internal quotations and citations omitted) (brackets and ellipses added), there is no precise standard that can be used to determine whether RICO causation exists. However, the Supreme Court has decided four cases over the last 22 years which have directly addressed the issue. In the last of those four cases — the 2010 decision in Hemi Group — the Supreme Court reviewed the three prior cases and extracted some basic principles relating to RICO causation. Writing for a four-justice plurality in Hemi Group, Chief Justice Roberts first discussed Holmes, the 1992 case which first enunciated the RICO causation standard, In Holmes, the Securities Investor Protection Corporation (“SIPC”), a private nonprofit corporation which has a duty to reimburse customers of certain registered broker-dealers in the event that the broker-dealers are unable to meet their financial obligations, brought a RICO claim against 75 defendants who had allegedly conspired to manipulate stock prices. When the conspiracy was detected, stock prices declined, rendering the broker-dealers unable to meet their obligations and leaving SIPC to reimburse the broker-dealers’ customers. The Holmes Court held that SIPC could not recover against the conspirators under RICO because it could not establish that it was injured “by reason of’ the alleged fraud as required by 18 U.S.C. § 1964(c). After holding that proximate causation required “some direct relation between the injury asserted and the injurious conduct alleged,” 503 U.S. at 268, 112 S.Ct. 1311, the Holmes Court held that the connection between the alleged conspiracy and SIPC’s injury was “too remote” to satisfy RICO’s direct relationship requirement. Id., at 271, 112 S.Ct. 1311. The Court stated: [T]he link is too remote between the stock manipulation alleged and the [broker-dealers’] customers’ harm, being purely contingent on the harm suffered by the broker-dealers. That is, the conspirators have allegedly injured these customers only insofar as the stock manipulation first injured the broker-dealers and left them without the wherewithal to pay customers’ claims. Although the customers’ claims are senior (in recourse to “customer property”) to those of the broker-dealers’ general creditors, the causes of their respective injuries are the same: The broker-dealers simply cannot pay their bills, and only that intervening insolvency connects the conspirators’ acts to the losses suffered by the nonpurchasing customers and general creditors. Id. (internal citation omitted; bracketed material added). After laying out these multiple steps between the alleged wrongdoing and the plaintiffs injury, the Holmes Court noted that “[t]he general tendency of the law, in regard to damages at least, is not to go beyond the first step,” and that this general tendency also applied to proximate cause inquiries under RICO. Id. at 271-72, 112 S.Ct. 1311 (internal quotations and citations omitted). The Hemi Group plurality next examined Anza, a 2006 decision which addressed a RICO claim brought by the Ideal Steel Supply Corporation (“Ideal”) against a competing entity, National Steel Supply, Inc., and its principals, Joseph and Vincent Anza (collectively, “National”). Ideal claimed that National had defrauded New York State by failing to charge and remit sales taxes, enabling National to undercut Ideal’s prices and, thereby, to attract customers at Ideal’s expense. Although the district court granted National’s motion to dismiss, the Second Circuit reversed, holding that “where a complaint alleges a pattern of racketeering activity ‘that was intended to and did give the defendant a competitive advantage over the plaintiff, the complaint adequately pleads proximate cause, and the plaintiff has standing to pursue a civil RICO claim.’ ” Anza, 547 U.S. at 455, 126 S.Ct. 1991 (quoting Ideal Steel Supply Corp. v. Anza, 373 F.3d 251, 263 (2d Cir.2004)). The Supreme Court reversed the Second Circuit, finding the link between the tax fraud allegedly perpetrated upon the State of New York and the injury suffered by Ideal to be “attenuated.” Id., at 459, 126 S.Ct. 1991. As Chief Justice Roberts explained in Hemi Group, Anza: recognized that Ideal had asserted “its own harms when [National] failed to charge customers for the applicable sales tax.” But the cause of Ideal’s harm was “a set of actions (offering lower prices) entirely distinct from the alleged RICO violation (defrauding the State).” The alleged violation therefore had not “led directly to the plaintiffs injuries,” and Ideal accordingly had failed to meet RICO’s “requirement of a direct causal connection” between the predicate offense and the alleged harm. Hemi Group, 559 U.S. at 10-11, 130 S.Ct. 983 (internal citations omitted, brackets and parentheses in original). In deciding Hemi Group, Chief Justice Roberts compared the facts in that case to the facts in Holmes and Anza. In Hemi Group, the City of New York, which taxes the possession of cigarettes, brought a RICO action against Hemi Group, a New Mexico entity which sells cigarettes online, seeking to recover amounts lost in unre-covered tax revenues. While New York State and City laws did not require Hemi Group to charge, collect, or remit the tax, a federal law — -the Jenkins Act — required ■Hemi Group to provide customer information to the states into which their cigarettes were shipped. Pursuant to an agreement between New York State and New York City, the State would forward the Jenkins Act information to the City, enabling the latter to take action to collect taxes from the online purchasers. In analyzing the City’s causal theory in Hemi Group, Chief Justice Roberts found it “far more attenuated than the one ... rejected in Holmes.” 559 U.S. at 9, 130 S.Ct. 983. The Chief Justice noted that the City’s theory involved multiple steps, stating: According to the City, Hemi committed fraud by selling cigarettes to city residents and fading to submit the required customer information to the State. Without the reports from Hemi, the State could not pass on the information to the City, even if it had been so inclined. Some of the customers legally obligated to pay the cigarette tax to the City failed to do so. Because the City did not receive the customer information, the City could not determine which customers had failed to pay the tax. The City thus could not pursue those customers for payment. The City thereby was injured in the amount of the portion of back taxes that were never collected. Id. After citing Holmes for the proposition that the “general tendency ... not to go beyond the first step” “applies with full force to proximate cause inquiries under RICO” Chief Justice Roberts concluded, “Because the City’s theory of causation requires us to move well beyond the first step, that theory cannot meet RICO’s direct relationship requirement.” Id. at 10, 130 S.Ct. 983. Chief Justice Roberts then compared the facts- of Hemi Group to Anza, and concluded: The City’s claim suffers from the same defect as the claim in Anza. Here, the conduct directly responsible for the City’s harm was the customers’ failure to pay their taxes. And the conduct constituting the alleged fraud was Hemi’s failure to file Jenkins Act reports. Thus, as in Anza, the conduct directly causing the harm was distinct from the conduct giving rise to the fraud. Id. at 11, 130 S.Ct. 983 (internal citation omitted). At the end of his opinion, the Chief Justice distinguished the Supreme Court’s 2008 decision in Bridge — a case involving competing bidders at a county tax-lien auction. In those auctions, liens on real property were awarded based on how small a tax penalty the bidder was willing to accept from property owners. Since multiple bidders routinely offered not to charge any tax penalty, the county allocated the liens between such bidders on a rotating basis. Recognizing that bidders who employed agents to bid on their behalf could obtain a disproportionate share of the liens, the county adopted a “Single, Simultaneous Bidder Rule,” requiring each bidder to submit bids in its own name and prohibited bidders from using agents to submit simultaneous bids for the same parcel. In Bridge, one regular participant in the auctions, Phoenix Bond and Indemnity Co. (“Phoenix”), brought RICO claims against another participant, alleging a violation of the Single, Simultaneous Bidder Rule. Although Phoenix alleged that its competitor had defrauded the county, and not Phoenix, the Supreme Court held that Phoenix had met RICO’s causation requirement. As Chief Justice Roberts explained in his opinion in Hemi Group: [T]he plaintiffs theory of causation in Bridge was “straightforward”: Because of the zero-sum nature of the auction, and because the county awarded bids on a rotational basis, each time a fraud-induced bid was awarded, a particular legitimate bidder was necessarily passed over. The losing bidders, moreover, were the only parties injured by petitioners’ misrepresentations. The county was not; it received the same revenue regardless of which bidder prevailed. 559 U.S. at 14-15, 130 S.Ct. 983 (internal quotations and citations omitted; brackets added). The Chief Justice then contrasted the facts in Hemi Group to those in Bridge, stating: The City’s theory in this case is anything but straightforward: Multiple steps ... separate the alleged fraud from the asserted injury, And in contrast to Bridge, where there were “no independent factors that accounted] for [the plaintiffs] injury,” here there certainly were: The City’s theory of liability rests on the independent actions of third and even fourth parties. Id. at 15, 130 S.Ct. 983 (internal citation omitted) (brackets in original). In their Objections to that portion of the R & R which recommends granting Defendants summary judgment dismissing Plaintiffs’ civil RICO claims, Plaintiffs principally rely on BCS Services, Inc. v. Heartwood 88, LLC, 637 F.3d 750 (7th Cir.2011)—a case arising from the same exact facts as Bridge. In Bridge, the Supreme Court affirmed a Seventh Circuit opinion authored by Judge Posner: Phoenix Bond & Indemnity Co. v. Bridge, 477 F.3d 928 (7th Cir.2007). On remand, the district court granted summary judgment to the defendants on the ground that the plaintiffs could not prove that the fraud was a “proximate cause” of their alleged losses. The plaintiffs then appealed to the Seventh Circuit, which consolidated the case with BCS Services, a case which the Seventh Circuit deemed “materially identical” to Bridge. 637 F.3d at 751. Although BCS Services involves the same facts as Bridge, the Supreme Court made a critical assumption in Bridge: that the county auctioneers had awarded the tax liens in cases in which multiple bidders tied for lowest bidder on a “rotational basis.” Bridge, 553 U.S. at 643, 128 S.Ct. 2131. As Judge Posner clarified in his opinion in BCS Services, that assumption was incorrect. In fact, auctioneers attempted to award the bids to the low bidder who raised his or her hand first. BCS Services, 637 F.3d at 752. However, while the awards were not made on a “strict rotational basis,” they could nonetheless be characterized as “the random product of guesswork.” Id. at 753. Although the facts in this case are quite different from the facts in BCS Services and Bridge, Plaintiffs argue that “[t]he instant case parallels BCS Services.” Objections at 11. In advancing this argument, Plaintiffs make much of the factual distinction between BCS Services and Bridge, arguing: BCS Services involved the actions of independent third parties — auctioneers— whose decisions ultimately determined whether the plaintiffs would be harmed or not: whether they would win the tax liens on which they bid. The presence of these third parties did not disrupt the forseeability or directness of the injury to the plaintiffs.... ” Objections at 11. The three-judge panel which decided BCS Services, however, viewed the factual distinction between that case and Bridge as essentially insignificant. In his opinion on behalf of the unanimous panel, Judge Posner found the relationship between the defendants’ wrongdoing and the plaintiffs’ injuries direct enough to satisfy the proximate cause requirement. See BCS Services, 637 F.3d at 756. Although the defendants violated the county’s rule limiting related entities to a single bidding agent, that rule “was intended for the benefit of unrelated bidders,” rather than for the benefits of the county itself, which received the same amount of money regardless of who won the auction. Id. Accordingly, the defendants’ law-abiding fellow bidders were both the intended and only victims of the RICO violation. While the Seventh Circuit recognized that the auctioneers decisions were intervening acts in the chain of causation, it tacitly concluded that these random decisions, over time, would produce roughly the same result as awarding bids on a strictly rotational basis. The Seventh Circuit noted: The only intermediate cause and effect pair was the raising of hands (cause) and the auctioneer’s determination of the winning bid (effect), and this pair doesn’t weaken the inference that by having more hands in the air the defendants stole tax liens from the other bidders. That would be obvious if the auctioneers awarded tax liens in identical-bid cases on a strictly rotational basis, as the Supreme Court assumed when, in its opinion affirming our previous decision, it characterized the plaintiffs’ theory of causation as “straightforward.” 553 U.S. at 647, 128 S.Ct. 2131; see also Hemi Group.... Straightforward it was and after discovery straightforward it remains because ... random awards ... are similar to awards made on a strictly rotational basis. BCS Services, 637 F.3d at 757. In other words, although an individual decision by an auctioneer might be unpredictable (like a single coin flip), the auctioneers’ random decisions over time could be expected to result in an equal distribution across all bidders (just as a long series of coin flips can be expected to average 50% heads, 50% tails). Since the intervening acts of the auctioneers were, in the aggregate, as predictable as a strict rotation, the effect of the misconduct on the honest bidders remained calculable. See Hemi Group, 559 U.S. at 14, 130 S.Ct. 983 (implying that the injury to the honest bidders in Bridge (and BCS Services) was calculable “[b]e-cause of the zero-sum nature of the auction, and because the county awarded bids on a rotational basis, each time a fraud-induced bid was awarded, a particular legitimate bidder was necessarily passed over”). In this case, in contrast, the intervening acts which interrupt the causal chain between Defendants’ RICO violations and Plaintiffs’ injuries cannot be readily predicted. Very broadly stated, Defendants in this case allegedly violated RICO by fraudulently exaggerating the safety and efficacy of a prescription antibiotic in order to boost sales and revenues. However, Defendants’ alleged misconduct would not result in injury to Plaintiffs unless doctors relied on the fraudulent information in prescribing the antibiotic to patients insured by Plaintiffs. As recognized by the Second Circuit in Zyprexa— the case on which Judge Reyes relied in his R & R — the prescribing decisions of physicians are based on so many factors as to defy any efforts to categorically attribute them to a particular cause. In Zyprexa, as here, TPPs sued a pharmaceutical company, Eli Lilly & Company (“Lilly”), alleging that the company exaggerated the efficacy and safety of a prescription medication, Zyprexa, in the course of promoting off-label uses of the medication. The TPPs moved to certify a class of TPPs that had paid for Zyprexa prescriptions, arguing that these class members had been injured (1) “by paying for Zyprexa prescriptions that would not have been issued but for the alleged misrepresentations” (the “Quantity Effect Theory”) and (2) “by paying a higher price for Zyprexa than would have been charged absent the alleged misrepresentations” (the “Excess Price Theory”). Zyprexa, 620 F.3d at 123. Lilly cross-moved for summary judgment. The district court, believing that the case, “[bjoiled down,” presented “an overpricing claim,” denied the motion for summary judgment, In re Zyprexa Prods. Liab. Litig., 493 F.Supp.2d 571, 576 (E.D.N.Y.2007), and certified a class of TPPs under the Price Effect Theory. In re Zyprexa Prods. Liab. Litig., 253 F.R.D. 69 (E.D.N.Y.2008). Both of the district court’s decisions were appealed to the Second Circuit, which addressed both appeals simultaneously in Zyprexa. That opinion began by addressing the class certification issue, noting that the parties agreed that the requirements of Federal Rule of Civil Procedure 23(a) were satisfied but disagreed as to whether questions of law or fact common to class members predominated over any questions .affecting only individual members. Zyprexa, 620 F.3d at 131. After observing that “[e]lass-wide issues predominate if resolution of some of the legal or factual questions that qualify each class member’s case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof,” id. (quoting Moore v. PaineWebber, Inc., 306 F.3d 1247, 1252 (2d Cir.2002)), the Second Circuit proceeded to consider whether “substantial elements” of the civil RICO claim against Eli Lilly could be “established by generalized, rather than individualized, proof.” Id. The Second Circuit first addressed the Excess Price Theory and determined that neither but-for causation nor proximate causation could be established through generalized proof. First, the Court held that since “doctors do not generally consider the price of a medication when deciding what to prescribe ... [,] reliance by doctors on misrepresentations as to the efficacy and side effects of a drug ... was not a but-for cause of the price that TPPs ultimately paid for each prescription.” Id. at 133-34. Second, the Court held that the multiple step causal chain and the “independent actions of third and even fourth parties” precluded using generalized proof to establish proximate causation. Id. at 134. The Second Circuit stated: [I]f plaintiffs’ factual allegations are correct, the chain of causation runs as follows: Lilly' distributes misinformation about Zyprexa, physicians rely upon the misinformation and prescribe Zyprexa, TPPs relying