In re Loestrin 24 Fe Antitrust Litigation (261 F. Supp. 3d 307, 2017)

OPINION AND ORDER

William E. Smith, Chief Judge

The plaintiffs in this multidistrict litigation (“MDL”) seek damages from the defendant-pharmaceutical companies for an allegedly anti-competitive scheme relating to Loestrin 24 FE (“Loestrin 24”), an oral contraceptive comprising 24 norethindrone acetate/ethinyl estradiol (1 mg/20 meg) tablets and four ferrous fumarate tablets.

In June 2013, the United States Supreme Court decided a landmark patent antitrust case, FTC v. Actavis, Inc., 570 U.S. 136, 133 S.Ct. 2223, 186 L.Ed.2d 343 (2013), which held that “reverse payments”—settlement payments in patent infringement suits remitted by patent holders to alleged infringers—are subject to the rule of reason under federal antitrust law; In October 2013, the United States Judicial Panel on Multidistrict Litigation consolidated and transferred the instant litigation to this Court. (See Transfer Order, ECF No. 1.) In September 2014, after briefing and argument, the Court dismissed the complaints, holding that Acta-vis applied only to cash payments and reserving judgment on all other issues. See generally In re Loestrin 24 Fe Antitrust Litig., 45 F.Supp.3d 180 (D.R.I. 2014) (“Loestrin 24 (D.R.I.)”). The First Circuit disagreed, vacating the dismissal and remanding for further proceedings. See generally In re Loestrin 24 Fe Antitrust Litig, 814 F.3d 538 (1st Cir. 2016) (“Loestrin 24”).

On remand from the Circuit, the plaintiffs have amended their complaints, and the parties have re-briefed and argued the defendants’ motions to dismiss. Before the Court are two Motions to Dismiss seeking to dismiss the four Operative Complaints in this MDL. For the reasons set forth below, and as previously ordered by this Court on July 21, 2017 (ECF No. 299), the Warner Chilcott Defendants’ Motion to Dismiss (ECF No, 192) is GRANTED with respect to the parent companies; DENIED WITHOUT PREJUDICE with respect to the Énd-Payor Plaintiffs’ (“EPPs”) claims under state law in the twenty-five states and Puerto Rico in which they failed to plead that they have either resided or purchased Loestrin 24 products in the state; DENIED WITHOUT PREJUDICE with respect to arguments that the EPPs failed to state a claim for relief under various state laws for antitrust violations, consumer protection violations, and unjust enrichment; and DENIED in all other respects. The Lupin Defendants’ Motion to Dismiss (ECF No. 191) is DENIED.

I. Background

A. The Parties

This MDL litigation consolidates four complaints filed by four sets of plaintiffs. The Direct Purchaser Plaintiffs (“DPPs”) are corporate entities that purchased Loestrin 24 directly from Warner Chilcott, one of the defendants. The Retailers, or the opt-out DPPs, comprise the Walgreen Plaintiffs and the CVS Plaintiffs. The EPPs are “third-party payors” or “indirect purchasers.” They generally comprise employee welfare benefit programs that reimbursed subscribers who purchased Loestrin 24, but also include three individuals who purchased Loestrin 24 for their own use.

Defendants are pharmaceutical companies; due to various mergers and acquisitions in the industry, their relationships to one another have changed over the relevant time period, and even during the course of this litigation. (DPP Compl. ¶¶ 18-80.) Warner Chilcott Company, LLC (“Warner Chilcott”) is the current assignee of the patent covering Loestrin 24, U.S. Patent No. 5,552,394 (“the 394 patent”),. and it holds the approved New Drug Application (“NDA”) from the Food and Drug Administration (the “FDA”) for Loestrin 24. (Id. ¶¶ 7,19.) Defendant Watson Laboratories, Inc. is a wholly-owned subsidiary of Watson Pharmaceuticals, Inc., which acquired Actavis, Inc. in 2013 and continued operations under the name Actavis, Inc.; the Court refers to these defendants collectively as “Watson,” except.when explicitly discussing Actavis, Inc. (CVS Compl. ¶30.) Warner Chilcott and Watson are currently both part of Defendant Allergan pic. (EPP Compl. ¶ 27.) The remaining defendants are Lupin Ltd. and Lupin Pharmaceuticals Inc. (collectively, “Lupin” and, together with Warner Chilcott and Watson, “Defendants”). (CVS Compl. ¶¶ 32-34.) Because Warner Chilcott’s and Watson’s interests are now aligned, and they have submitted joint briefing, they are collectively referred to as the “Warner Chilcott" Defendants.” The EPPs, Walgreen Plaintiffs, and CVS Plaintiffs have named Lupin as a defendant; the DPPs have not. (DPP Compl. ¶ 16-30; EPP Compl. ¶¶ 40-41; Walgreens Compl. ¶¶ 36-37; CVS Compl. ¶¶ 32-34.)

B. Generics and the Hatch-Waxman Act Regulatory Framework

The public relies on pharmaceutical companies to develop and bring to market the medical advances that keep us healthy. For this reason, our patent laws afford substantial protection to firms whose innovation leads to the development of new and beneficial medications. Typically, a company that has developed a beneficial and successful medication will enjoy a period of time during which it can sell it exclusively and at a supracompetitive price, thereby recovering its development costs and turning a profit. This period of exclusivity is considered to be an essential incentive for further healthcare and biopharmaceutical research and innovation. See Wendy H. Schacht and John R. Thomas, Cong. Research Serv., RL30756, Patent Law and Its Application to the Pharmaceutical Industry: An Examination of the Drug Price Competition and Patent Term Restoration Act of 1984 (“The Hatch-Waxman Act”) 2-6 (2000).

Once the period of exclusivity expires, however, generic competitors enter the market, severely undercutting the manufacturer’s pricing scheme and eliminating most of the innovator’s profits. (EPP Compl. ¶ 66.) For example, where there is a single generic competitor, the generic tends to be priced approximately 10% lower than the brand name counterpart. (DPP Compl. ¶ 56.) And, where there are multiple generic alternatives, the price of the generics typically falls to 50% to 80% below the brand name product, driving the price close to the marginal cost of production. (Id. ¶¶ 56, 70.) It is no mystery then why a brand and first-filing generic may be motivated to conspire to keep the brand’s monopoly going, splitting the higher profits amongst themselves. (See id. ¶ 74.)

Because every state has passed a law to either require or permit pharmacies to substitute AB-rated generics for brand name drugs (unless the prescribing doctor orders otherwise), generally within a year of generic market entry, generics will capture 90% of sales and prices will fall by as much as 85%. (DPP Compl. ¶57.) Not surprisingly, then, brand manufacturers view generic competition as a serious threat to profits. (Id.) If there is no generic on the market, the pharmacy must fill the prescription with the branded drug, and supracompetitive pricing may continue. (See id. ¶ 59.)

The Drug Price Competition and Patent Term Restoration Act of 1984 (more commonly known as the “Hatch-Waxman Act”), Pub. L. No. 98-417, 98 Stat. 1585 (1984), as amended, prescribes the process by which pharmaceutical firms may gain approval from the FDA to. bring medications to market. There are four key features to the Hatch-Waxman Act’s architecture.

First, a drug manufacturer that wishes to market a new product must submit a New Drug Application (“NDA”) to the FDA and undergo a rigorous approval process. See Hatch-Waxman Act, 21 U.S.C. § 355(b)(1)(A) (requiring, inter alia, that the manufacturer provide “full reports of investigations which have been made to show whether or not such drug is safe for use and whether such, drug is effective in use”). By all accounts, this approval process is arduous and expensive. But, once the FDA has approved an NDA, the manufacturer is entitled to list the drug in the FDA’s “Approved Drug Products with Therapeutic Equivalence Evaluations” (also known as the “Orange Book”). (DPP Compl. ¶ 38.) The Orange Book entry provides a measure of protection for the manufacturer by allowing it to list any patents that the manufacturer believes could be asserted against generic competitors. (Id.)

Second, the Hatch-Waxman Act recognized that if manufacturers who have gained FDA approval were allowed to charge supracompetitive prices indefinitely, it would harm consumers. Therefore, the Act creates a mechanism to promote the availability of cheaper generic alternatives by allowing generic manufacturers to bypass many of the onerous aspects of the NDA process. Instead of filing an NDA, a generic manufacturer may instead file an Abbreviated NDA (“ANDA”). See 21 U.S.C. § 355(j). An ANDA incorporates the findings of safety and effectiveness of the previously-approved NDA, and generally assures that the proposed generic contains the same active ingredients and is otherwise as equally safe and effective as the brand name counterpart. See id. at § 355(j)(2). Thus, the ANDA process allows a generic manufacturer to obtain approval while avoiding the “costly and time-consuming studies” needed to obtain approval for a “pioneer drug.” Eli Lilly & Co. v. Medtronic, Inc., 496 U.S. 661, 676, 110 S.Ct. 2683, 110 L.Ed.2d 605 (1990), The FDA assigns a rating of “AB” when it determines a generic drug is therapeutically equivalent to its brand-name counterpart. (Walgreen Compl. ¶ 48.) To be therapeutically equivalent, the ANDA must demonstrate that the generic drug is both pharmaceutically equivalent and bioequiva-lent, or in other words, that it “contains the same active ingredient(s), dosage form, route of administration, and strength as the brand drug, and is absorbed at the same rate and to the same extent as the brand drug .... ” (Id.)

Third, the Hatch-Waxman Act sets forth procedures for resolving patent disputes between brand and generic manufacturers. A generic manufacturer filing an ANDA must certify to the FDA that the proposed generic does not infringe any patents listed in the Orange Book. See 21 U.S.C. § 355(J)(2)(A)(vii). This certification can be made in one of several ways. The generic manufacturer may represent that: (1) the brand manufacturer has not filed any relevant patents; (2) any relevant patents have expired; or (3) a relevant patent is soon to expire and the generic will not be marketed until after the expiration. Id. at §§ 355(j)(2)(A)(vii)(I)-(III). Alternatively, the generic manufacturer may represent that the patent covering' the brand drug is invalid or will not be infringed by the proposed generic (a so-called “Paragraph IV certification”). Id at § 355(j)(2)(A)(vii)(IV).

An ANDA filer who relies on a Paragraph IV certification will almost certainly be sued for patent infringement by the brand manufacturer. Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 407, 132 S.Ct. 1670, 182 L.Ed.2d 678 (2012) (“Filing a paragraph IV certification means provoking litigation.”). Indeed, if the brand manufacturer brings an infringement suit within 45 days of the generic manufacturer’s filing of the ANDA, the Hatch-Waxman Act provides that the FDA must withhold approval of the generic for a 30-month period during which the parties may litigate the validity of the underlying patent. 21 U.S.C. § 355(j)(5)(B)(iii).

Finally, in order to incentivize generic manufacturers that incur the costs and risks stemming from Paragraph IV certification litigation, and to encourage generic competition, the Hatch-Waxman Act affords the first successful Paragraph IV ANDA filer a 180-day post-approval exclusivity period during which that manufacturer is the only authorized generic seller. Id at § 355(j)(5)(B)(iv). Because the price of ,a drug drops precipitously as more and more generics enter the market, this initial period of exclusivity can generate substantial profits for the first generic manufacturer. ¿. Scott Hemphill, Paying for Delay: Pharmaceutical, Patent Settlement as a Regulatory Design Problem, 81 N.Y.U. L. Rev. 1553, 1579 (2006) (describing first-filed ANDA status as “worth several hundred million dollars to a generic firm that successfully challenges the patents bn a major drug”).

. C. Loestrin 24 and the ‘394 Patent

The active ingredients in Loestrin 24, norethindrone acetate and ethinyl estra-diol, were approved by the FDA as a means of oral contraception in 1973 under the brand names Loestrin 1.5/30 and Loestrin 1/20. (DPP Compl. ¶¶ 1,100-01.) Loestrin 1.5/30 and Loestrin 1/20 were generally marketed for use over a 21-day period; women would take the oral contraceptive for 21 consecutive days, followed by a placebo pill containing iron for the following 7 days, before starting the next cycle. (See id. ¶ 102.) Two additional Loestrin products (viz., Loestrin 21 1.5/30 and Loestrin 21 1/20) were approved by the FDA in 1976; they contained only 21 active tablets of the same composition of Loestrin 1.5/30 and Loestrin 1/20, respectively, and omitted the 7 placebo pills. (Id. ¶¶ 104-060-

On July 22, 1994, a professor at the Eastern Virginia Medical School (“EVMS”), Dr. Gary Hodgen,

applied for a patent for a method of female contraception characterized by a reduced incidence of breakthrough bleeding by administering a combination of estrogen and progestin for 23-25 consecutive days of a 28-day cycle in which the daily amounts of estrogen and pro-gestin are equivalent to about 5-35 meg of ethinyl estradiol and about 0.025 to 10 mg of norethindrone acetate.

(Id. ¶ 117 (emphasis omitted).) Dr. Hodgen assigned the patent application to EVMS. (Id.) Occasional intermenstrual bleeding, also referred to as “breakthrough bleeding” or “spotting,” is vaginal bleeding that occurs mid-cycle, as opposed to during menstruation, and can be a common occurrence associated with many oral contraceptives. (Id. ¶ 119.)

Dr. Hodgen, in support of his application, submitted data, from a 1992 study conducted with ten monkeys. (Id. ¶¶ 122, 124.) In that study, scientists from EVMS administered Loestrin 1/20 active tablets (ground up and adjusted to account for lower body weight) to monkeys and ostensibly found that the monkeys had a decrease in the incidence of breakthrough bleeding when they received active ingredient tablets for 24 days, rather than 21 days. (Id. ¶¶ 124-25.)

According to Plaintiffs’ allegations, “[beginning on or around January 1993” scientists at EVMS conducted a human study in which two groups comprising fifteen women each followed one of two low dose oral contraceptive regimens for three months. (See, e.g., id. ¶¶ 127, .129.) The first group received a regimen of 25 days of Loestrin 1/20 tablets followed by 3 placebo tablets; the second group followed a monthly regimen of 21 Loestrin 1/20 tablets followed by 7 placebo tablets. (Id. ¶ 129.) The study participants in the first group knew they were following a regimen of 25 days of Loestrin 1/20 tablets followed by 3 placebo tablets; participants were not required to keep the study design or methods confidential. (Id. ¶ 130.) The scientists found no significant differences between the two groups in the women’s incidence of breakthrough bleeding. (Id. ¶ 132.) The study was published in the Journal of the Society for Gynecologic Investigation in March 1996. (Id. ¶ 133.) .

Dr. Hodgen submitted an application to the Patent and Trademark Office (“PTO”) in July 1994. , (Walgreen Compl. ¶ 3.) Within the application, he included “minimal data” from the monkey study, and did not disclose .the results of the human study to the PTO. (DPP, Compl. ¶¶ 122, 126.) According to Plaintiffs’ Complaints, “the patent examiner focused on two issues: [ (1) ] the amount of ethinyl estradiol and norethindrone acetate in oral contraceptives disclosed in the prior art; and [(2)] whether the invention decreased breakthrough bleeding.” (See, e,g., id. ¶ 135.) With respect to the first issue, the examiner noted that a prior art reference (namely, the Craft reference) disclosed a contraceptive regimen of 50 meg of ethinyl estradiol and 3 mg of norethindrone acetate. (Id. ¶ 136.) The examiner further noted that a second prior art reference, EPO 253,607, also known as the “Upton reference,” disclosed a contraceptive regimen of administering 15 meg ethinyl estradiol with progestin each day, with a 24-day dosing regimen. (Id.) With this information, the patent examiner made an initial determination that the Craft and Upton ■references rendered all claims obvious. (Id.) The applicants responded, in pertinent part, as follows:

[T]he claimed regimen leaves the patient with a total estrogen exposure per an-num which is well below the total annual dose of estrogen in all other combination formulations commercially available in this country. Those all contain at least 30 meg EE (Craft uses 50 meg) and a regimen of 21 dosing day plus a 7-day pill free interval.... In contrast to Craft, the present invention employs a lower estrogen dosage which does not participate in this contraceptive efficacy but instead controls unscheduled bleeding.

(Id. ¶ 137 (alteration and emphasis in original).) The applicants did not disclose that Loestrin 1/20 contains 20 meg of ethinyl estradiol and that it had been publicly available since the 1970s. (Id.)

With respect to the second issue, in response to the applicants’ rejoinder, the patent examiner addressed whether the invention reduced breakthrough bleeding. (Id. ¶ 138.) The examiner again rejected the claims because the amount of ethinyl estradiol disclosed in the claims (35 meg) was similar to that taught by the Craft reference (50 meg) and the applicants had not shown “that a dosage regimen different by only 15 meg less of estrogen has unexpected contraceptive and reduced breakthrough bleeding results.” (Id. (emphasis omitted).)

The EPPs allege in their Complaint that two U.S Patents and one publication teach of doses of ethinyl estradiol that “fall within the claimed ranges and weight rations of the ’394 patent,” as well as European Patent No. 253,607, which discloses a 24-day dosing regimen. (See EPP Compl. ¶¶ 132, 134 (citing the WO 93/17686 publication, U.S. Patent No. 5,108,995, and U.S. Patent No. 4,826,831).) They also allege that the prior art was such that “[o]ne of ordinary skill would thus have expected that administering a combination of estrogen and progestin for 23-25 days, or specifically 24 days, would be safe and effective.” (Id. ¶ 136; see also id. ¶¶ 131-42.)

On February 5,1996, the patent examiner issued a Notice of Allowability for all claims. The patent issued in September 1996. (DPP Compl. ¶ 134.) The resulting patent, the ’394 patent, is titled “Low Dose Oral Contraceptives with Less Breakthrough Bleeding and Sustained Efficacy.” (Id. ¶ 118.) As mentioned, Loestrin 24 has 24 tablets containing 1 mg of norethin-drone acetate and 20 meg of ethinyl estradiol, as well as 4 placebo tablets containing iron. (Id ¶ 109.) Thus the active tablets mimic Loestrin 1/20 and Loestrin 21. Warner Chilcott owned the ’394 patent from 2003, when its predecessor acquired it, through Watson’s generic entry in July 2014. (EPP Compl. ¶¶ 155,172.)

In April 2005, Warner Chilcott submitted an NDA and, in February 2006, received FDA approval to market the dosing regimen that would become Loestrin 24. (DPP Compl. ¶ 108.) At approximately the same time, Warner Chilcott listed Loestrin 24 in the Orange Book. (See id. ¶¶ 113-16.) According to the DPPs, “[bjefore listing the ’394 patent, Warner Chilcott knew that it was invalid and/or unenforceable.” (Id ¶ 116.) Warner Chilcott earned over $1.75 billion in revenue between 2006 and 2012 from sales of branded Loestrin 24, and its sales were approximately $247 million annually in 2009. (Id. ¶ 112; CVS Compl. ¶ 126.)

D. Watson Challenges the ‘394 Patent

In June 2006, just several months after Warner Chilcott’s NDA was approved, Watson notified Warner Chilcott that it had filed an ANDA to market a generic version of Loestrin 24 based on a Paragraph IV certification that the generic would not infringe the ’394 patent. (DPP Compl. ¶¶ 168, 171.) Not unpredictably, Warner Chilcott responded by filing suit against Watson. (Id ¶ 172.) By doing so, Warner Chilcott triggered the 30-month stay provision of the Hatch-Waxman Act, preventing the FDA from approving Watson’s ANDA for at least 30 months. (See id. ¶ 172.)

In January 2009, at approximately the same time that the 30-month stay would have expired (that would have allowed the FDA to move forward on Watson’s ANDA), and before the parties briefed the substantive issues in the case, the parties filed a dismissal stipulation and entered into a settlement agreement (the “Watson Agreement”). (Id. ¶¶ 183-84, 187.) Pursuant to the Watson Agreement, Watson agreed to delay the launch of a Loestrin 24 generic until the earliest of: (1) January 2014, approximately six months prior to the expiration of the ’394 patent; (2) “180 days before a date on which Warner Chil-cott grants rights to a third party to market a generic version of Loestrin 24 in the United States”; or (3) “the date on which another generic version of Loestrin 24 enters the market.” (Id ¶ 188.) In exchange for this, Warner Chilcott and Watson entered into a series of deals that, in the DPPs’ calculation, were worth at least $66 million. (Id ¶¶ 9, 189-218.) Specifically, the Watson Agreement provided that Warner Chilcott (1) would not launch an authorized generic Loestrin 24 within Watson’s first 180 days on the market, which the DPPs estimate to be worth at least $41.34 million to Watson; (2) would not grant a license to any other generics for at least the first six months Watson had entered the market; (3) agreed to pay Watson annual fees and a percentage of net sales in connection with the co-promotion of a separate Warner Chilcott drug called Femring, a deal valued by the DPPs to be worth about $25 million to Watson; and (4) would give Watson the exclusive right to market and sell a separate Warner Chilcott oral contraceptive known as Generess Fe, memorialized in a patent license and finished product supply agreements, in exchange for Warner Chilcott receiving 15% of net sales until the launch of a generic Gener-ess product or if Watson exercised a buyout right; this was valued by the DPPs to be worth tens of millions to Watson. (DPP Compl. ¶¶ 9, 206, 210-11.) The EPPs value the sum of -these deals as worth at least $216.67 million to Watson; the DPPs value it as worth tens or hundreds of millions to Watson; and the Retailers value the sum of the deals at approximately $266 million to Watson. (EPP Compl. ¶ 4; DPP Compl. ¶¶ 9, 192, 199; CVS Compl. ¶¶124, 131-32.) Plaintiffs allege that these “side deals”, occurred contemporaneously with the settlement of the ’394 patent infringement suit. (See, e.g., DPP Compl. ¶ 206.)

Plaintiffs allege that Warner Chilcott entered into agreements, or “reverse payments,” as a quid pro quo for-Watson’s agreement to abandon its invalidity, unen-foreeability, and infringement claims, as well as Watson’s agreement to delay generic competition to Loestrin 24. (DPP Compl. ¶¶ 189, 191.) They further allege that Watson could not have obtained these payments if it had prevailed in the patent infringement suit against Warner Chilcott. (Id. ¶190.) Plaintiffs plead that litigation costs for similar patent infringement suits cost approximately $6 to $10 million, from complaint to verdict. (Id. ¶¶ 192,199 (citing American Intellectual Property Lawyers Association, 2013 Report of the Economic Survey 34 (2013)); EPP Compl. ¶197 (‘Warner Chilcott’s future expected litigation costs at the time of the settlement with Watson were much less than that because, among other reasons, the patent case had been pending for years.”).)

The DPPs point to a 2002 FTC report suggesting that generic manufacturers won 73% of the Hatch-Waxman patent litigation suits decided on the merits from 1992 to 2002. (DPP Compl. ¶49 (citing FTC, Generic Drug Entry Prior to Patent Expiration: An FTC Study, at vi-vii (July 2002)); John R. Allison, Mark A. Lemley & David L. Schwartz, Understanding the Realities of Modern Patent Litigation, 92 Tex. L. Rev. 1769, 1787 (2014) (noting that generic challengers prevailed in 74%. of patent infringement suits filed in 2008 and 2009 and decided on the merits).)

E. Lupin Challenges the ‘394 Patent

Six months after Warner Chilcott and Watson announced the Watson Agreement, in June 2009, Lupin notified Warner Chilcott that it too had filed an ANDA seeking to market a generic alternative to Loestrin 24. (DPP Compl. ¶220.) Like Watson, Lupin based its ANDA on a Paragraph IV certification that Lupin’s generic would not infringe the ’394 patent. (Id.) And, as before, Warner Chilcott responded by filing suit. (Id. ¶ 221 & h.44.) Again, merely by filing suit, Warner Chilcott triggered a 30-month stay of the Lupin generic under the Hatch-Waxman Act. (See id. ¶ 222.)

In October 2010, Warner Chilcott dismissed the suit, and Warner and Lupin entered into an agreement (the “Lupin Agreement”). (Id. ¶ 225.) Pursuant to that agreement, Lupin agreed not to market its Loestrin 24 generic Until July 2014, the same month the ’394 patent was to expire and six months after Watson had been authorized to market its generic. (Id. ¶ 226.)

Like Watson, Lupin is alleged to have benefitted from its agreement to delay the introduction of its generic. First, Warner Chilcott granted Lupin a license to market Femcon Fe, a separate oral contraceptive manufactured by Warner Chilcott, beginning on the earlier of 180 days after Teva Pharmaceutical Industries, Ltd (the first filer) entered the market with a generic equivalent, or January 1, 2013. (EPP Compl. ¶214.) The EPPs value this at approximately $15 -million to Lupin. (Id, ¶5⅛).) Plaintiffs allege that, but for this agreement, Lupin would "not have been able to enter the market until, at a minimum, January 31, 2012, at the end of the 80-month stay. (See, e.g., EPP Compl. ¶ 214.) Second, Lupin was given the right to sell a generic version of Asacol 400, an anti-inflammatory drug to be supplied by Warner Chilcott, if a generic version of Asacol 400 was launched by another generic manufacturer in the United States. (DPP Compl. ¶ 228.) The EPPs value this deal as being worth at least $50 million to Lupin. (EPP Compl. ¶ 5(b).) Third, Warner Chilcott agreed to pay $2 million in attorneys* fees to Lupin. (DPP Compl. ¶ 229.)

The EPPs and the Retailer Plaintiffs challenge the Lupin Agreement as a reverse payment. (See, e.g., EPP Compl. ¶¶ 355-63; Walgreen Compl. ¶¶ 146-47.) The DPPs do not.

F. Mylan Challenges the ’394 Patent

In April 2011, six months after the Lu-pin Agreement was announced, Mylan Pharmaceuticals Inc. (“Mylan”), together with Famy Care Ltd., notified Warner Chilcott that Mylan and Famy Care Ltd. had filed an ANDA for a generic Loestrin 24 and included in its notice letter a Paragraph IV certification. (DPP Compl. ¶ 233; EPP Compl. ¶ 227.) In June 2011, Warner Chilcott filed suit against Mylan alleging infringement of the ’394 patent. (DPP Compl. ¶ 234 & n.45; EPP Compl. ¶228.) The 30-month stay was triggered, and the case proceeded through claim construction. (DPP Compl. ¶¶ 235-36.) While this suit was pending, the Federal Circuit ruled in a similar patent suit that the patent covering another low-dose, extended-regimen oral contraceptive was invalid for obviousness. (EPP Compl. ¶¶ 234-36.) Warner Chilcott and Mylan entered into a settlement agreement and dismissed the case just weeks before it was scheduled for trial. (DPP Compl. ¶ 239.) Mylan agreed to dismiss its suit challenging the ’394 patent, and delay entry of its generic version of Loestrin 24 until July 22, 2014—the month the ’394 patent was set to expire. (EPP Compl. ¶ 241.)

G. Warner Chilcott Introduces Minastrin 24

Before generic Loestrin 24 could enter the market, Warner Chilcott created a second, similar product. According to Plaintiffs, this second product had no safety, efficacy, or other benefit of any sort for consumers, and it was formulated as a step in the broader anticompetitive scheme. (See, e.g., EPP Compl. ¶¶ 244-45.) In July 2012, Warner Chilcott submitted an NDA for a second oral contraceptive comprised of 24 norethindrone acetate/ethinyl estra-diol (1 mg/20 meg) tablets arid four ferrous fumarate tablets; this drug was later marketed under the brand name Minastrin 24. (DPP Compl. ¶ 252.) Minastrin 24 was different from Loestrin 24 in two ways: Warner Chilcott added spearmint and a sweetener to the inactive pills (there was no change to the active pills), and its proposed labeling instructed women to chew the pill before swallowing. (Id. ¶253.) In essence, the only differences between the active pills in Loestrin 24 and Minastrin 24 were their method of use (chew vs. swallow) and markings. (Id. ¶¶ 255-56 (quoting the FDA as stating that, “[t]he NA and EE tablets of the proposed product [Minastrin 24] have the same components, composition, doses, and dosing regimen as the NA and EE tablets of Loestrin 24 Fe[ ]”); see also EPP Compl. ¶250 (quoting the FDA as stating “vvith the exception of tablet de-bossing and insignificant manufacturing changes, the proposed drug product [Mi-nastrin 24] is identical to approved Loestrin 24 Fe[ ]”) (internal citation omitted).) The inactive pills solely serve as reminder pills, there is no medical reason to take the pills, and they may be discarded. (DPP Compl. ¶ 254; EPP Compl. ¶248.)

The FDA approved, the Minastrin 24 NDA in May 2013. (DPP Compl. ¶252.) Minastrin 24 and Loestrin 24 are not AB-rated and, therefore, pharmacies cannot substitute Minastrin 24 for generic Loestrin 24. (Id. ¶ 268.) Warner Chilcott launched Minastrin 24 in July 2013, sending its sales force out to “aggressively switch” Loestrin 24 prescriptions to those for Minastrin 24. (Id. ¶¶ 266, 273.) It stopped promoting Loestrin 24 and promoted Minastrin 24 instead. (Id. ¶273.)

In August 2013, Warner Chilcott withdrew branded Loestrin 24 from the market. (Id. ¶ 267.) The DPPs’ Complaint states that ‘Warner Chilcott did not remove existing Loestrin 24 supplies from the market but instead ceased manufacturing and distributing Loestrin 24.” (Id.) In June 2014, after receiving new three-year marketing exclusivity, Warner Chilcott changed the Minastrin 24 labeling to state that women could either chew or swallow the pills. (Id. ¶¶ 270, 282.)

Plaintiffs allege that Warner Chilcott’s sole motivation in this alleged “product hop” was to impair generic competition. (Id. ¶¶ 277, 280.) But for its impairing genetic competition, it would have been a money-losing endeavor for Warner Chil-cott. (EPP Compl. ¶ 270; DPP Compl. ¶280.) Plaintiffs claim that the Minastrin 24 product hop involved extra costs (developing, patenting, gaining FDA approval of, and marketing Minastrin 24) and lost revenue (from branded sales of Loestrin 24), at least in the short run, for Warner Chilcott. (DPP Compl. ¶¶ 278-80.) Warner Chilcott’s motivation is further revealed by its withdrawal of the request for FDA approval for Minastrin 24 on two occasions,' at least once for “business reasons,” that corresponded with settlement negotiations with Watson and Lupin. (EPP Compl. ¶¶ 273-75.)

The Complaints allege that “Warner Chilcott successfully converted virtually all of Loestrin 24 prescriptions to Minastrin 24 before Watson’s geneiic entered in January 2014.” (DPP Compl. ¶ 288.)

H. Harm to Consumers

According to Plaintiffs, the net effect of the alleged anticompetitive scheme, from the ’394 patent application to the Minastrin 24 product hop, was to delay generic competition until at least January 2014. (See, e.g., EPP Compl. ¶¶ 281-85; DPP Compl. ¶ 288.) Absent these various efforts, Plaintiffs allege, Loestrin 24 would have' faced generic competition as early as September 2009, when the FDA approved Watson’s ANDA. (DPP Compl. ¶¶ 15, 325.) At that time, Warner Chilcott would have lost its monopoly—other generic versions of Loestrin 24, including an authorized generic would have entered the market—and consumers would have paid less for oral contraceptives comprising 24 norethin-drone acetate/ethinyl estradiol (1 mg/20 meg) and four ferrous fumarate tablets by:

(i) substituting purchases of less-expensive AB-rated generic Loestrin 24 for their purchases of more-expensive branded Loestrin 24; (ii) receiving discounts on their remaining branded Loestrin 24 purchases; (iii) purchasing generic Loestrin 24 at lower prices sooner; and (iv) purchasing less expensive generic Loestrin 24 instead of more expensive branded Minastrin 24.

(DPP Compl. ¶¶ 325, 328, 331.) As a result, Plaintiffs were injured by paying overcharges for the oral contraceptive. (Id. II15.)

Plaintiffs argue that Defendants’ scheme and unlawful payments harmed Plaintiffs by allowing Defendants to:

(a) delay the entry of less expensive generic versions of Loestrin 24 in the United States; (b) fix, raise, maintain or stabilize the price of Loestrin 24; and (c) allocate 100% of the U.S. market for Loestrin 24 and its generic equivalents to Warner Chilcott.

(Walgreen Compl. ¶ 163.)

I. Claims for Relief

The DPPs bring claims against Defendant Warner Chilcott for violating § 1 of the Sherman Antitrust Act (the “Sherman Act”), 15 U.S.C. § 1, by entering into the Watson Agreement, and § 2 of the Sherman Act for engaging in an exclusionary, anticompetitive scheme designed to create and maintain a monopoly in the market for Loestrin 24 drugs. (DPP Compl. ¶¶ 346, 353-55.) Under this latter claim, Plaintiffs attack Warner Chilcott’s listing of the drug in the Orange Book; filing a “sham” lawsuit against generic manufacturers of Loestrin 24; the reverse payment to Watson; reformulating Loestrin 24 into Mi-nastrin 24; aggressively switching sales from Loestrin 24 to Minastrin 24; and removing Loestrin 24 from the market months before expected generic entry. (Id. ¶ 346.)

The EPPs bring seven claims sounding in state antitrust law, state consumer protection l&w, and unjust enrichment against Warner Chilcott, Watson, and Lupin. More specifically, the EPPs allege: (1) a monopolization and monopolistic scheme under state law, or state antitrust claims under state law (EPP Compl. ¶¶ 338-52); (2) conspiracy and combination in restraint of trade under state law against Warner Chilcott and Watson (id. ¶¶ 346-54); (3) conspiracy and combination in restraint of trade under state law against Warner Chilcott and Lupin (id. ¶¶ 355-63); (4) conspiracy and combination in restraint of trade under state law against all Defendants (id. ¶¶ 364-73); (5) unfair or unconscionable acts and practices under state law against all Defendants (id. ¶¶ 374-79); (6) unjust enrichment against all Defendants (id. ¶¶ 380-91); and (7) grounds for declaratory and injunctive relief pnder federal law against Warner Chilcott (id. ¶¶ 392-97).

The Walgreen and CVS Plaintiffs, separately, bring claims against Warner Chil-cott for violating § 2 of the Sherman Act by monopolization and attempt to monopolize (Walgreen Compl. ¶¶ 197-208; CVS Compl. ¶¶ 195-206); against Warner Chilcott and Watson, as well as Warner Chilcott and Lupin, for violating § 1 of the Sherman Act by conspiring to restrain trade through the reverse payments (Walgreen Compl. ¶¶ 209-24; CVS Compl. ¶¶ 207-22); and against all Defendants for conspiring to restrain trade in violation of § 1 of the Sherman Act (Walgreen Compl. ¶ 225-29; CVS Compl. ¶¶ 223-27).

II. Legal Standard

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “[N]aked assertion[s],” “[t]hreadbare recitals of the elements of a cause of action,” and “mere eonclusory statements” are insufficient to survive dismissal. Id. (internal citations omitted). That being said, “the pleadings need not contain ‘detailed factual allegations’ but must provide ‘more than labels and conclusions, and a formulaic recitation of the elements of the cause of action will not do.’ ” Loestrin 24, 814 F.3d at 549 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). As the First Circuit has stated in this very case,

it -is important to note that Twombly addressed the specific question of “what a plaintiff must plead in order to state a claim under § 1 of the Sherman Act,” and [the First Circuit] has cautioned against converting Twombly* s mandates into a requirement that antitrust plaintiffs provide evidentiary support or set forth other “plus factors” to demonstrate the plausibility of their Sherman Act claims[.]

Id. at 649 (internal citations omitted). Plaintiffs must plead facts sufficient, “to raise a reasonable expectation that discovery will reveal evidence” of the Sherman Act violations. Twombly, 550 U.S. at 556, 127 S.Ct. 1955.

III. Discussion

A. Market Power

Defendants argue that Plaintiffs have failed to plausibly allege that Warner Chilcott exercised market power in a relevant economic market, taking particular aim at Plaintiffs’ narrowly defined market comprising only Loestrin 24, Minastrin 24, and their AB-rated generic equivalents. (See Warner Chilcott & Watson Defs.* Omnibus Mem. Supporting Dismissal of all Claims in all Pls.’ Compls. (“Warner Chilcott Mot. to Dismiss”) 3-5, ECF No. 198.) Defendants argue that the relevant market is properly defined as the wider oral contraceptive market—which they characterize as a “fragmented and highly competitive” market. (See id. at 10.) In this broader market, they contend Loestrin 24 did .pot enjoy sufficient market power to exercise a monopoly. But Defendants concede, as they must, that courts generally treat this fact-intensive issue as one to be decided on a motion for summary judgment (if no genuine issue of material fact exists) or at trial. (See Warner Chilcott & Watson Defs.’ Omnibus Reply Mem. (“Warner Chilcott Reply”) 8 & n.6, ECF No. 212 (citing, for example, In re Nexium (Esomeprazole) Antitrust Litig., 968 F.Supp.2d 367, 389 (D. Mass. 2013) (Nexium I); Andrx Pharm., Inc, v. Elan Corp., 421 F.3d 1227, 1235 (11th Cir. 2005)).)

To state a claim for relief under § 1 of the Sherman Act, a plaintiff must plead sufficient facts to demonstrate that “the defendant had market power, in the relevant market, and the specific intent to restrain competition.” CVD, Inc, v. Raytheon Co., 769 F.2d 842, 851 (1st Cir. 1985). Under § 2 of the Sherman Act, similarly, a plaintiff must demonstrate that “the defendant had the specific intent to monopolize the relevant market, and a dangerous probability of success.” Id.

Market power, sometimes called monopoly power, “is the abilities (1) to price substantially above the competitive level and. (2) to persist in doing so for a significant period without erosion by new entry or expansion.” In re Aggrenox Antitrust Litig., 199 F.Supp.3d 662, 665 (D. Conn. 2016) (“Aggrenox II”) (quoting IIB Areeda & Hovenkamp, Antitrust Law, ¶501, at 111 (3rd ed. 2007) (emphasis in original)). A plaintiff may demonstrate market power in two ways: “[a] plaintiff can either show direct evidence of market power (perhaps by showing actual supra-competitive prices and restricted output) or circumstantial evidence of market pow-er Coastal Fuels Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 196-97 (1st Cir. 1996) (citing Rebel Oil Co., Inc. v. Atlantic Richfield Co., 51 F.3d 1421, 1434 (9th Cir. 1995)); see also In re Aggrenox Antitrust Litigation, 94 F.Supp.3d 224, 246 (D. Conn. 2015) (“Aggrenox I”) (“[W]hen direct evidence is available that a party profitably charges supracompetitive prices, the existence of market power can be established from that fact alone.” (citing Tops Markets, Inc. v. Quality Markets, Inc., 142 F.3d 90, 97-98 (2d Cir. 1998))); accord Actavis, 133 S.Ct. at 2236-37 (“[T]he size of the [reverse] payment from a branded drug manufacturer to prospective generic is itself a strong indicator of power ....” If a large reverse payment is demonstrated it “may well” suggest “market power derived from the patent.”) (quotation and citation omitted).

A “relevant market” is properly defined as consisting of “commodities reasonably interchangeable by consumers for the same purposes.” Nexium I, 968 F.Supp.2d at 395 (quotation omitted); see also Brown Shoe Co. v. United States, 370 U.S. 294, 325, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962) (“The outer boundaries of a product market are determined by the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it.”). Products are not reasonably interchangeable merely because they share similar forms or functions, but rather “[s]uch limits are drawn according to the cross-elasticity of demand for the product in question—the extent to which purchasers will accept substitute products in instances of price fluctuation and other changes.” Nexium I, 968 F.Supp.2d at 387-88 (quoting George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 508 F.2d 547, 552 (1st Cir. 1974)).

There is no strict prohibition on defining a relevant market as a single-drug market. See, e.g., Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 482, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (“This Court’s prior cases support the proposition that in some instances one brand of a product can constitute a separate market.”); Geneva Pharms. Tech. Corp. v. Barr Labs., Inc., 386 F.3d 485, 496-500 (2d Cir. 2004) (defining the relevant market as the generic versions of a particular drug, excluding the branded version of the drug); In re Terazosin Hydrochloride Antitrust Litig., 352 F.Supp.2d 1279, 1319 n.40 (S.D. Fla. 2005) (defining a relevant market as a branded drug and its generic counterpart); In re Cardizem CD Antitrust Litig., 105 F.Supp.2d 618, 680-81 (E.D. Mich. 2000), aff'd, 332 F.3d 896 (6th Cir. 2003) (holding a branded drug and its generic version to be a plausible relevant market); Nexium I, 968 F.Supp.2d at 388 (holding a single branded drag and its generic to be a plausible relevant market).

In the instant case, Plaintiffs’ Complaints allege the following. Warner Chilcott had monopoly power in the relevant market and, at relevant times, enjoyed a market share of 100%. (DPP Compl. ¶¶ 300, 309.) Plaintiffs define the relevant market as oral contraceptives with 24 active tablets containing 1 mg norethindrone acetate and 20 meg ethinyl estradiol and four inactive iron tablets. As defined, this market comprises Loestrin 24, Loestrin 24’s AB-rated generic equivalents, Minastrin 24, and Minastrin 24’s AB-rated generic equivalents (collectively, the “Loestrin 24 drugs”), as well as narrower markets therein. (Id. ¶¶ 300-01.)

In support of their allegation that Warner Chilcott had market power sufficient to exclude competitors and control prices of Loestrin 24 drugs, Plaintiffs rely on direct evidence of market power. They allege that direct evidence shows that:

(i) generic versions of each [of the Loestrin 24 drugs] would have entered the market at substantial discounts to the brand versions but for the defendants’ anticompetitive conduct; (ii) the gross margin on each drug was at all times at least 60%; and (iii) the defendants never lowered the price of the drugs to the competitive level in response to the pricing of other branded or generic drugs.

(Id. ¶302.) According to Plaintiffs, this resulted in Warner Chilcott selling branded Loestrin 24 drugs in excess of marginal costs and in excess of the competitive prices, thereby allowing them to enjoy high profit margins. (Id. ¶ 306.) Plaintiffs further allege that, “[a]t competitive prices, Loestrin 24 drugs do not exhibit significant, positive, cross-elasticity of demand with respect to price with any other oral contraceptive other than AB-rated generic versions of those Loestrin 24 drugs.” (Id. ¶304.) Plaintiffs say that only the entry of AB-rated generic Loest-rin 24 drugs would have undercut Warner Chilcott’s ability to maintain supra-competitive prices for Loestrin 24 drugs. (Id. ¶ 305.) This market had high barriers to entry due to patent protection; the high cost of entry and expansion; the cost of marketing and physician detailing; and AB-rated generic substitution laws. (Id. ¶ 308.) Loestrin 24 and Minastrin 24 are not reasonably interchangeable with other drugs, according to Plaintiffs, other than their AB-rated generic versions, due to “attributes [that] significantly differen-tiat[e] them from other oral contraceptives and mak[e] them unique as against other oral contraceptives”; indeed, according to Plaintiffs, “[t]he FDA does not consider Loestrin 24 drugs and other oral contraceptives interchangeable,” in light of variations in their active ingredients and dosages. (Id. ¶310.) Moreover, oral contraceptives differ in their efficacy, safety, and side effect profiles. These differences drive a doctor’s recommendation, as well as a woman’s decision, to continue taking a particular oral contraceptive. (Id. ¶ 312.)

While there are many oral contraceptives on the market, this is not a typical market because the consumer generally neither fully chooses nor pays for the product. In the typical case, a doctor chooses the oral contraceptive her patient will buy and the patient’s insurer pays for it. (See id. ¶ 313.) As a result, the pharmaceutical marketplace exhibits a disconnect between the product selection and the payment obligation, with the consequence that price does not drive prescriptions for oral contraceptives, as it would in most other markets. (Id. ¶313.) Even though other oral contraceptives were available on the market, including lower-priced generics that were not AB-rated to Loestrin 24, Loestrin 24’s sales increased from 2008 to 2011, and its price increased each year. (Id. 11319.)

Thus, in these circumstances, and at this preliminary stage of the case, the Court concludes that Plaintiffs have met their burden by plausibly alleging that Warner Chilcott charged supracompetitive prices for Loestrin drugs without losing sales, and thus Warner Chilcott had market power in the relevant market. Having said this, it may very well turn out, after discovery, that the Loestrin drugs are in fact reasonably economically interchangeable with other oral contraceptives, or some subset of oral contraceptives. But, this is a fact-sensitive issue that is not appropriately decided on a motion to dismiss. See Eastman Kodak Co., 504 U.S. at 482, 112 S.Ct. 2072 (noting that “[t]he proper market definition” required “factual inquiry into the ‘commercial realities’ faced by consumers”); Nexium I, 968 F.Supp.2d at 388 (stating that the interchangeability of the drug with other drugs is “such a factually intensive determination [it] is better left for resolution by a jury”).

B. Reverse Payment

All Plaintiffs allege that the terms of the Watson Agreement constituted a large and unjustified reverse payment made in exchange for Watson’s promise to delay entry of its AB-rated generic version of Loestrin 24 for almost five years. (See, e.g., DPP Compl. ¶218.) The EPPs and Retailer Plaintiffs also challenge the Lupin Agreement as an unlawful reverse payment. (EPP Compl. ¶¶ 215-19; Walgreen Compl. ¶¶ 144-45; CVS Compl. ¶ 141-42.) Defendants move to dismiss these claims.

Reverse payments are subject to the rule of reason. Actavis, 133 S.Ct. at 2237-38. The rule of reason is applied in a three-step process: a plaintiff must first “prove anticompetitive effects,” by demonstrating “a payment for delay, or, in other words, payment to prevent the risk of competition.” King Drug Co. of Florence v. Smithkline Beecham Corp., 791 F.3d 388, 412 (3d Cir. 2015) (“Lamictal”), cert. denied, — U.S. -, 137 S.Ct. 446, 196 L.Ed.2d 328 (2016) (citing Actavis, 133 S.Ct. at 2235-36). “[T]he likelihood of a reverse payment bringing about anticom-petitive effects depends upon its size, its scale in relation to the payor’s anticipated future litigation costs, its independence from other services for which it might represent payment, , and the lack of any other convincing justification.” Actavis, 133 S.Ct. at 2237. Second, if the plaintiffs satisfy the first step, “the burden then shifts to the [defendants to show that a challenged payment was justified by some precompet-itive objective”; and third, “the burden shifts back to the [plaintiffs to establish, under the rule of reason, that the settlement is' nevertheless anticompetitive on balance.” In re Nexium (Esomeprazole) Antitrust Litig., 42 F.Supp.3d 231, 262-63 (D. Mass. 2014) (“Nexium II”).

Before the Court sets out to address whether Plaintiffs have plausibly alleged a large and unjustified reverse payment, there are several threshold issues to address.

■ First, the parties disagree about the significance of the- “five sets of considerations” addressed in Actavis. 133 S.Ct. at 2234. In the instant case, the First Circuit expressly rejected a reading of the five considerations as “guid[ing] the inquiry as to whether a settlement payment satisfies the rule of reasont.]” Loestrin 24, 814 F.3d at 551 n.12. Rather, the First Circuit agreed with the DPPs that the Supreme Court proffered these considerations “only as justifications for why subjecting reverse payments to antitrust scrutiny outweigh the public policy in favor of settlements' .,. [and, thus,] the five considerations should not overhaul the rule of reason, nor should they create a new five-part framework in antitrust cases.” Id. at 551 n.12 (internal citation omitted) (emphasis added); see also id. at ‘544 (“The Supreme Court acknowledged the ‘general legal policy in favor of settlements, but determined that ‘five sets of considerations’ weighed in favor of subjecting reverse payment settlements to antitrust scrutiny.” (quoting Ac-tavis, 133 S.Ct. at 2234-37)). As a result, the Court meets the Warner Chilcott Defendants’ argument that the five guideposts discussed in Actavis “set[ ] forth key considerations [that the Court must address here] for discerning between traditional settlements (as to which there is no concern) -and unusual settlements (as to which further scrutiny may be required),’’ with a healthy dose of skepticism. (See Warner Chilcott Reply 15; see also Warner Chilcott Mot. to Dismiss 36.) The Warner Chilcott Defendants seize the Supreme Court’s statement that “[w]here a reverse payment reflects traditional settlement considerations, such as avoided litigation costs or fair value for services, there is not the same concern that a patentee is using its monopoly profits to avoid the- risk of patent invalidation or a finding of nonin-fringement.” Actavis, 133 S.Ct. at 2236. Rather than adopting-the Warner Chilcott Defendants’ emphasis on the distinction between traditional and nontraditional settlement terms, however, the Court adheres to the First Circuit’s guidance in Loestrin 24.

Second, the Court must choose a'framework within which to analyze the alleged unlawful reverse payments under the Watson and Lupin Agreements, given their complexity. On this, the parties seem to agree that the Court must look at each component of the two deals, as well as each settlement agreement as a whole, to determine whether plausible claims have been set forth that the Watson and Lupin Agreements, constitute large and unjustified reverse payments.

-This is well supported by the case law. On the one hand, there is support for analyzing each component of a complex, non-cash reverse payment settlement to determine whether it is cognizable under Actavis. See, e.g„ In re Actos End Payor Antitrust Litig., No, 13-CV-9244 (RA), 2015 WL 5610752, at *12-13, 18 (S.D.N.Y. Sept. 22, 2015) (“Actos”), affd in part, vacated in part on other grounds 848 F.3d 89 (2d Cir. 2017) (holding that an acceleration clause is not subject to antitrust scrutiny where Plaintiffs conceded that they could be procompetitive in some circumstances, but noting that no-AG clauses are subject to antitrust scrutiny), Indeed, the First Circuit, in the instant case, directed this Court to address on remhnd the subsequent issue of "whether the individual provisions of the settlement agreements .,. would have been adequately alleged as unlawful reverse payments.” Loestrin 24, 814 F.3d at 548; see also id. C‘[T]he district court ,., did not address the subsequent question of whether the individual provisions of the settlement agreements— including the no-AG agreement, the acceleration clause, and the various side deals— would have been adequately alleged as unlawful reverse payments were Actavis to extend to non-cash -payments.”). There is similar support for looking at the whole' of the settlement to determine its alleged effect on competition. See Aggrenox I, 94 F.Supp.3d at 243 (“A settlement agreement may be very simple or tremendously complex, and it may involve all manner of consideration; and if, when viewed holistically, it effects a large and unexplained net transfer of value from the patent-holder to the alleged patent-infringer, it may fairly be called a reverse-payment settlement.”); see also In re Opana ER Antitrust Litig., 162 F.Supp.3d 704, 718 (N.D. Ill. 2016) ("Opana”) (declining the defendants’ invitation to assess the components of the settlement in a “piecemeal fashion” to determine whether “each individual payment fails to rise to the level of a large and unjustified payment” and choosing instead to “determine whether, when taken as a whole, the total payment ... was large and unjustified”); In re Niaspan Antitrust Litigation, 42 F.Supp.3d 735, 752 (E.D. Pa. 2014) (“Niaspan”) (“[D]efendants may not improperly ‘dismember’ plaintiffs’ Consolidated Amended Complaints by examining each of the three settlement agreements in isolation. Rather, the Licensing Agreement must be read in conjunction with the Co-Promotion and Manufacturing Agreements executed that same day.”) (internal citations omitted).

Here, because the Operative Complaints set forth plausible allegations that the Watson and Lupin Agreements were global, complex settlement agreements, the Court proceeds in two steps. First, the Court looks at each component of the Watson and Lupin Agreements to determine whether they were “adequately alleged as unlawful reverse payments,” Loestrin 24, 814 F.3d at 548; that is, whether they are appropriately part of the calculus when the Court proceeds to the second step. For example, a reasonable cash payment exchanged to cover litigation expenses would be excluded from any further antitrust scrutiny, but such a payment would of course factor into the -second step of the analysis in as much as it specifically addresses litigation costs, which, in turn, means that other components of the settlement agreement do not. Second, the Court takes a broad and holistic look at the deal to determine whether the entire deal, taken as a whole, amounted to a large and unjustified reverse payment. Specifically, the Court gives the arrangement a careful look with an eye toward “the likelihood of a reverse payment bringing about anticom-petitive effects” in light of “its size, its scale in relation to the payor’s anticipated future litigation costs, its independence from other services for which it might represent payment, and.the lack of any other convincing justification.” Actavis, 133 S.Ct. at 2237; see also id. at 2236 (“Where a reverse payment reflects traditional settlement considerations, such as fair value for services, there is not the same concern[.]”); In re Lipitor Antitrust Litig., 46 F.Supp.Sd 523, 546 (D.N.J. 2014) (“Even if the reverse payment is shown, any traditional settlement considerations or services provided by the generic are deducted to determine whether there is a net positive payment flowing from the patentee to the alleged infringer.”)

Third, much of the parties’ briefing addresses the level of particularity with which a reverse payment must be pleaded. On this, the First Circuit has been clear; all that is required is:

that the plaintiffs plead information sufficient “to estimate the value of the term, at least to the extent of determining whether it is ‘large’ and ‘unjustified.’ ” Consistent with Twombly, which declined to “require heightened fact pleading of specifics,” we do not require that the plaintiffs provide precise figures and calculations at the pleading stage. Requiring such a high burden would impose a nearly insurmountable bar for plaintiffs at the pleading stage because “very precise and particularized estimates of fair value and anticipated litigation costs may require evidence in the exclusive possession of the defendants, as well as expert analysis.” Nevertheless, the plaintiffs must allege facts sufficient to support the legal conclusion that the settlement at issue involves a large and unjustified reverse payment under Actavis.

Loestrin 24, 814 F.3d at 552 (internal citations omitted). Though the First Circuit does not require Plaintiffs to attach a dollar figure to the value of the alleged unlawful reverse payment, for most of the settlement components, Plaintiffs have nevertheless done so by placing relatively specific valuations on each of the components as well as the whole.

Fourth, the Court must determine whether it should value the alleged reverse payment from the perspective of the patent holder, the alleged infringer, or both, for this inquiry. (See, e.g., Retailer Mem. in Opp’n to the Warner Chilcott/Watson Mot. to Dismiss Brief (“Retailers Brief’) 26, ECF No. 207.) The text of Actavis suggests that the Court should consider both in considering an alleged unlawful reverse payment. See Actavis, 133 S.Ct. at 2235 (“The payment may instead provide strong evidence that the patentee seeks to induce the generic challenger to abandon its claim with a share of its monopoly profits that would otherwise be lost in the competitive market.”). The Court’s use of the word “induce” suggests that the value to the alleged infringer is paramount, whereas the emphasis on the “share of its monopoly profits” supports the notion that the brand must be alleged to have sacrificed some amount of its anticipated profits in order to maintain its monopoly.

With these principles in mind, the Court turns to the Watson and Lupin Agreements.

1. The Watson Agreement

As outlined above, the Watson Agreement provided Watson with a no-AG provision; a six-month period of generic exclusivity; the Femring promotional deal; and the Generess promotional deal.

a. No AG-Agreement

The Warner Chilcott Defendants argue that a no-AG agreement is not an unlawful reverse payment as a matter' of law. (See generally Warner Chilcott Mot. to Dismiss 59-82.) The Court disagrees. Here, Plaintiffs value the no-AG deal at more than $40 million to Watson. (See, e.g., DPP Compl. ¶¶ 194-99; Walgreen Compl. ¶ 127.) The Complaints plausibly allege that a no-AG agreement is both very valuable to a generic manufacturer (and thus may induce it to stay out of the market) and amounts to a sacrifice by a brand manufacturer, rendering the potential anticompetitive effect plain. On a 12(b)(6) motion to dismiss, this is sufficient. See Aggrenox I, 94 F.Supp.3d at 245 (“If some particular transfer of money would be unlawful—for whatever reason— its unlawfulness is not cured merely because the value is transferred in the form of exclusive licenses instead of cash, irrespective of whether the grant of an exclusive license would otherwise be valid.... The issue is not whether the form of the payment was legal, but whether the purpose of the payment was legal.”); see also Lamictal, 791 F.3d at 409 (holding that a no-AG agreement, “because it may represent an unusual, unexplained transfer of value from the patent holder to the alleged infringer that cannot be adequately justified—whether as compensation for litigation expenses or services, or otherwise—is subject to antitrust scrutiny under the rule of reason.” (internal footnote omitted)); Opana, 162 F.Supp.3d at 718; In re Solodyn (Minocycline Hydrochlor