City of Rockford v. Mallinckrodt ARD, Inc. (360 F. Supp. 3d 730, 2019)

FREDERICK J. KAPALA, District Judge

Plaintiffs, City of Rockford, Illinois, and Acument Global Technologies Inc., filed a second amended complaint (the "SAC") against two groups of defendants: (1) Mallinckrodt plc and Mallinckrodt ARD, Inc.

(including its acquisition of "Questcor Pharmaceuticals, Inc.") (collectively, "Mallinckrodt"); and (2) Express Scripts Holding Company and its four wholly-owned subsidiaries, Express Scripts, Inc. ("ESI"), Curascript, Inc., Accredo Health Group, Inc., and United Biosource Corp. ("UBC") (collectively, "Express Scripts"), pursuant to federal and state antitrust and consumer protection laws, the Racketeer Influenced and Corrupt Organizations Act ("RICO"), various state-law claims, and 28 U.S.C. §§ 2201 - 2202 for declaratory judgment. Before this court are defendants' motions to dismiss. For the reasons that follow, defendants' motions to dismiss are granted in part and denied in part.

I. BACKGROUND

The following facts are drawn from the allegations in the SAC. Because this case comes before the court pursuant to a motion to dismiss, the court accepts all non-conclusory allegations in the SAC as true.

A. Acthar and the Exclusive Dealing Arrangement

Acthar is an adrenocorticotropic hormone ("ACTH") drug, which causes the body to produce cortisone and other steroid hormones. SAC ¶ 41. In 1952, the Food and Drug Administration approved Acthar's application to over fifty conditions. Id. ¶ 40. One of those conditions is infantile spasms, a serious condition but one with an annual patient population of less than 2,000 children. Id. ¶ 45. In 2001, Questcor Pharmaceuticals, Inc. acquired the rights to Acthar. In 2014, Mallinckrodt plc, another pharmaceutical company, acquired Questcor and, with it, Acthar. Id. ¶ 44. As a result of the acquisition Questcor's name was changed to Mallinckrodt ARD, Inc. Id. ¶ 22.

Before 2007, Acthar was distributed to any doctor, hospital, wholesaler, or specialty pharmacy who requested the drug to treat seriously ill patients. Id. ¶ 47. On August 27, 2007, Mallinckrodt embarked on a "new strategy" that sought to limit Acthar's distribution by designating Express Scripts as Mallinckrodt's sole distributor of Acthar. Id. ¶¶ 48-49, 221. Plaintiffs allege that the "new strategy" is in fact a vertical price-fixing conspiracy, in which Mallinckrodt used Express Scripts as its exclusive distributor of Acthar through a program called the "Acthar Support & Access Program" (the "ASAP") to raise prices, restrict distribution, and stifle competition. According to plaintiffs, the structure of the ASAP allows defendants to restrict the distribution of Acthar to just one distributor, Express Scripts, thereby eliminating other distributors from negotiating for lower prices for Acthar. Id. ¶¶ 48, 90, 231.

Express Scripts' role is to provide "integrated specialty services" to facilitate every other facet of the distribution chain, where each Express Scripts entity plays different roles at different levels of this process. Id. ¶ 58. UBC, a pharmaceutical support services company, acts as the "hub" between these entities, coordinating Acthar's sale, distribution, and reimbursement between Mallinckrodt, ESI, CuraScript, and Accredo. Id. ¶ 51. Specifically, after being contacted directly by patients or notified by Mallinckrodt that a patient wants to purchase Acthar, UBC confirms the medical necessity of the prescription through Accredo (a specialty pharmacy services company) and then arranges payment through ESI (the pharmacy benefit manager ("PBM") ) for shipment of Acthar to patients through CuraScript (the wholesale pharmacy/distributor). Id. ¶¶ 57-62, 67. This allows Mallinckrodt to simply ship Acthar directly to patients and receive payments directly from the patients' third-party payors, while Express Scripts handles the rest. Id. ¶ 50.

Plaintiffs further allege various anticompetitive acts that enabled defendants to use the ASAP to price-fix and maintain Mallinckrodt's monopoly. One example is the timing of Acthar's first large price increase. As soon as defendants implemented the ASAP, Mallinckrodt increased the price of Acthar from approximately $ 1,980 to $ 27,922.80-a 1,310% increase in the span of a month, and a 69,707% increase from 2001. Id. ¶¶ 89-90. Arguing that this price increase was made possible by an unlawful conspiracy between defendants, plaintiffs allege that Express Scripts did not push back on this price increase despite acknowledging that Acthar was vastly overpriced, and still has not pushed back on even higher prices as of the filing of the SAC. Id. ¶¶ 94, 97-99. Express Scripts was in a unique position to negotiate the most competitive prices for specialty drugs in the United States as a result of its representation of the largest number of buyers in the pharmaceutical marketplace. Id. ¶¶ 56, 73, 96, 100-102, 239. Plaintiffs provide an example of a time where Express Scripts used its bargaining power to extract lower prices from a manufacturer, Daraprim, which had increased the price of another drug 5000% in one year. Id. ¶¶ 85-86. Specifically, in December 2015, Express Scripts partnered with a different manufacturer to offer its purchasers a low-cost alternative to the drug as a response to Daraprim's manufacturer's pricing decision. Id. ¶¶ 87-88. But in the case of Acthar, Express Scripts "had no interest in lowering the price for Acthar because it was making money off all aspects of its exclusive arrangement with the manufacturer. In other words, by helping Mallinckrodt maintain and enhance its monopoly power in the ACTH market, Express Scripts along with Mallinckrodt realized greater profits at the expense of payors, like Plaintiffs." Id. ¶ 96. As a result, from the time Mallinckrodt acquired Acthar in 2001 to the commencement of this action, the cost of Acthar grew 109,046%. Id. ¶ 93.

B. The Synacthen Acquisition

Plaintiffs also contend that the purported conspiracy allowed Mallinckrodt to keep Acthar's price high by eliminating potential competition to Acthar. By 2013, the only significant alternative to Acthar was Synacthen Depot ("Synacthen"), a synthetically derived ACTH medication manufactured by Novartis AG. Id. ¶ 106. Mallinckrodt was aware of Novartis as a competitive threat for years, including when defendants implemented the ASAP in 2007. Id. ¶¶ 127-129. Mallinckrodt unsuccessfully attempted to buy the rights to Synacthen in 2009. Id. ¶¶ 106, 132. In October of 2012, Mallinckrodt learned that at least one other company was attempting to buy the rights to Synacthen from Novartis to compete with Mallinckrodt in the ACTH drug market in the United States. Id. ¶ 141. Three firms proceeded through several rounds of negotiations with Novartis, submitted formal offers, and drafted near-final agreements. Id. ¶ 136. Each firm planned to commercialize Synacthen in the United States, having taken affirmative steps to do so by independently conducting due diligence, and crafting business plans and regulatory approval strategies. Id. ¶ 137.

In 2013, Novartis agreed to sell the rights of Synacthen to Retrophin, Inc., for $ 16 million. Id. ¶ 108. However, on June 11, 2013, the day Retrophin was to sign its contract with Novartis, Mallinckrodt "swept in at the eleventh hour" and agreed with Novartis to pay a minimum of $ 135 million for the exclusive rights to Synacthen (the "Synacthen Acquisition"). Id. ¶¶ 108, 144-145, 147. Unlike the three alternative bidders, Mallinckrodt had only incomplete plans for Synacthen and conducted limited due diligence when it submitted its initial offer to Novartis. Id. ¶ 143. Upon purchasing the rights to Synacthen, Mallinckrodt chose not to bring it to market. Id. ¶¶ 108, 145. Mallinckrodt never sought FDA approval for Synacthen. Id. ¶ 145. Acthar was and continues to be the only viable product in the market for infantile spasms and certain other conditions. Id. ¶ 122. Because ACTH drugs require Food and Drug Administration approval to be sold to consumers, there are significant barriers to entry for ACTH drugs. Id. ¶ 124.

In January 2014, Retrophin sued Mallinckrodt for antitrust violations in the United States District Court for the Central District of California. Retrophin alleged that there was no procompetitive aspect of Mallinckrodt's acquisition of Synacthen. Id. ¶ 146. The Federal Trade Commission sued Mallinckrodt on January 18, 2017, similarly alleging that Mallinckrodt exercised, and continued to exercise, monopoly power in the United States and did so unlawfully based on the Synacthen Acquisition. Id. ¶¶ 115-116. Mallinckrodt chose to settle the Retrophin lawsuit for $ 15.5 million and the FTC lawsuit for $ 100 million. Id. ¶¶ 91, 150, 155. Plaintiffs point to the Retrophin and FTC complaints against Mallinckrodt to support their claims that Mallinckrodt violated antitrust laws by eliminating the only viable competition to Acthar.

C. The Instant Action

Rockford provides its employees with a health plan that includes prescription insurance coverage for two Acthar patients. The health plan has a contract with ESI, which requires ESI to collect payments for the price of Acthar. In a contract between Rockford and ESI (the "PBM Agreement" or the "contract") that the parties entered into on January 1, 2015, ESI agreed to provide Rockford certain services, including "cost containment," although "cost containment" is not defined in the agreement. Mallinckrodt charged Rockford for Acthar at a discounted rate of 13.5% off the "average wholesale price" as set forth in the PBM Agreement. Mallinckrodt set the average wholesale prices of Acthar used by Express Scripts for reimbursement. Accordingly, on April 1, 2015, Mallinckrodt had Acthar shipped directly to the children of two Rockford employees. ESI then charged Rockford $ 100,457.64 for the 30-day supply of Acthar, pursuant to the terms of the PBM Agreement.

In contrast, Acument has a contract with CVS Caremark ("CVS") which covered the spouse of one of Acument's employees because the spouse suffers from a condition for which Acthar was prescribed as a treatment option. Plaintiffs allege that CVS stepped into the place of ESI in the Acthar distribution chain, but was still coordinated by UBC. CVS charged Acument $ 894,617.75 for thirteen administrations of Acthar in a thirteen-month period between December 2015 and December 2016. Id. ¶ 10.

The SAC alleges claims by Rockford against Express Scripts for unjust enrichment (Count I); Rockford against Mallinckrodt for unjust enrichment (Count II); Acument against Mallinckrodt for unjust enrichment (Count III); plaintiffs against all defendants for fraud (Count IV), conspiracy to defraud (Count V), maintenance of monopolization under 15 U.S.C. § 2 (Count VI), unreasonable restraint of trade under 15 U.S.C. § 1 (Count VII), violation of state antitrust and consumer protection laws (Count VIII), participation in racketeering activity under 18 U.S.C. § 1962(c) (Count IX), use of investment funds from racketeering activity under 18 U.S.C. § 1962(a) (Count X), and agreement to participate in racketeering activity under 18 U.S.C. § 1962(d) (Count XI); and Rockford against Express Scripts for breach of contract based on the PBM Agreement (Count XII), promissory estoppel (Count XIII), declaratory judgment based on the PBM Agreement (Count XIV), and breach of the implied covenant of good faith and fair dealing (Count XV). Mallinckrodt and Express Scripts have separately moved to dismiss the SAC pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state claims against them.

II. ANALYSIS

When deciding a motion to dismiss, the court accepts all of the well-pleaded allegations of the complaint as true and draws all reasonable inferences in favor of the plaintiff. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Under the Federal Rules, a complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[D]etailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true ... 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). In analyzing whether a complaint has met this standard, the "reviewing court [must] draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937. Further, plaintiffs' claims for fraud, conspiracy to defraud and RICO conspiracy are subject to a heightened pleading standard that requires plaintiffs to plead their allegations with specificity. See Fed. R. Civ. Proc. 9(b) ; Fid. Nat'l Title Ins. Co. of N.Y. v. Intercounty Nat'l Title Ins. Co., 412 F.3d 745, 749 (7th Cir. 2005).

As an initial matter, defendants argue in their motions to dismiss that plaintiffs' claims are barred by applicable statutes of limitations to the extent that plaintiffs seek recovery for them and the class based on payments for Acthar that fall outside of each claim's respective limitations periods. "A plaintiff is not required to plead elements in his or her complaint that overcome affirmative defenses, such as statute-of-limitations defenses." NewSpin Sports, LLC v. Arrow Elecs., Inc., 910 F.3d 293, 299 (7th Cir. 2018). Accordingly, defendants' statute of limitations argument may be raised in their answers and litigated later in these proceedings.

A. Federal Antitrust Claims (Counts VI and VII)

The gravamen of plaintiffs' antitrust claims is that defendants acted and conspired to raise Acthar prices exorbitantly high as part of a vertical price-fixing scheme and did so by implementing the ASAP, restricting distribution, not seeking low-cost alternatives to Acthar, and, in the case of the Synacthen Acquisition, eliminating viable competitors from entering the ACTH market in order to unlawfully preserve Mallinckrodt's monopoly for its and Express Scripts' pecuniary benefit. The antitrust conspiracy, as plaintiffs allege, injured plaintiffs by forcing them to pay higher costs for Acthar than they would have but for defendants' conduct. For the foregoing reasons, the court finds that Rockford has plausibly stated that defendants' conduct amounted to violations of §§ 1 and 2 and that it was injured by this conduct, but that Acument does not plausibly allege that it has antitrust standing to sue.

1. Plaintiffs' Article III Standing for Federal Antitrust Claims

Generally, Article III standing is "the threshold question in every federal case, determining the power of the court to entertain the suit." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). All that is required to demonstrate Article III standing is "injury in fact plus redressability." Kochert v. Greater Lafayette Health Servs., Inc., 463 F.3d 710, 714 (7th Cir. 2006). There is no dispute that plaintiffs have Article III standing to bring their federal antitrust claims. Thus, the court will proceed to discuss each plaintiffs' "antitrust standing" to bring this suit.

2. Rockford's Antitrust Standing for Federal Claims

The Supreme Court has found two additional standing limitations born from the Sherman Act as part of a separate standing doctrine known as "antitrust standing." See Loeb Indus., Inc. v. Sumitomo Corp., 306 F.3d 469, 480 (7th Cir. 2002) (describing the range of antitrust standing limitations that have emerged from federal law). First, in Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), the Supreme Court held that only direct purchasers from alleged antitrust violators may bring federal antitrust actions. Second, in Associated General Contractors of California, Inc. v. California State Council of Carpenters ("AGC"), 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983), the Supreme Court held that courts must engage in a "proximate cause" analysis to determine whether a plaintiff is a "proper party" to bring suit. Because these limitations "are analytically distinct," Int'l Bhd. of Teamsters, Local 734 Health & Welfare Tr. Fund v. Philip Morris Inc., 196 F.3d 818, 828 (7th Cir. 1999), the court assesses each in turn, see also Loeb, 306 F.3d at 475 ("We find that Illinois Brick presents no obstacle to any of the plaintiffs' claims but that the claims of the scrap copper dealers are precluded under AGC.").

a. Illinois Brick

As alleged, Rockford directly purchased Acthar from Express Scripts, so the "indirect purchaser" limitation of Illinois Brick does not affect Rockford's antitrust standing to sue Express Scripts. As for its claims against Mallinckrodt as an indirect purchaser, Illinois Brick's "indirect purchaser" rule denies Rockford antitrust standing unless it fits into one of the recognized exceptions to Illinois Brick. One such exception is the "co-conspirator" exception, which allows indirect purchasers to sue middlemen-conspirators if the plaintiffs can establish a conspiracy and overcharges:

Illinois Brick does not limit suits by consumers against a manufacturer who illegally contracted with its dealers to set the latter's resale price. The consumer plaintiff is a direct purchaser from the dealer who, by hypothesis, has conspired illegally with the manufacturer with respect to the very price paid by the consumer. There is no problem of duplication or apportionment because the consumer is the only party who has paid any overcharge. Although the manufacturer did not sell directly to the consumer, he is a fellow conspirator with the direct-selling dealer and therefore jointly and severally liable with the dealer for the consumer's injury.

2 PHILLIP E. AREEDA & HERBERT HOVENKAMP , ANTITRUST LAW 264 (rev. ed. 1995) (footnotes omitted); see Paper Sys. Inc. v. Nippon Paper Indus. Co., 281 F.3d 629, 634 (7th Cir. 2002). The "crucial question" for courts assessing this exception is whether the alleged anticompetitive conduct stems from an agreement between the alleged co-conspirators. Tamburo v. Dworkin, 601 F.3d 693, 699 (7th Cir. 2010).

A plaintiff alleging conspiracy to fix prices in violation of the Sherman Act must allege "enough factual matter (taken as true) to suggest that an agreement was made"-that is, "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of illegal agreement." Twombly, 550 U.S. at 556, 127 S.Ct. 1955. This standard is not the same as the "heightened" pleading standard of Rule 9(b), and accordingly, plaintiffs can allege an antitrust conspiracy by pleading circumstantial evidence of an illegal agreement.

See id. at 569 n.14, 127 S.Ct. 1955 (affirming dismissal of antitrust conspiracy allegations and noting that "[i]n reaching this conclusion, we do not apply any 'heightened' pleading standard, nor do we seek to broaden the scope of Federal Rule of Civil Procedure 9.... Here, our concern is not that the allegations in the complaint were insufficiently 'particular[ized]'; rather, the complaint warranted dismissal because it failed in toto to render plaintiffs' entitlement to relief plausible" (citation omitted) ). Indeed, "circumstantial evidence is the lifeblood of antitrust law" because direct evidence will rarely be available to prove the existence of a price-fixing conspiracy. In re Flash Memory Antitrust Litig., 643 F.Supp.2d 1133, 1147 (N.D. Cal. 2009) (quoting United States v. Falstaff Brewing Corp., 410 U.S. 526, 534 n.13, 93 S.Ct. 1096, 35 L.Ed.2d 475 (1973) ) ("Plaintiffs alleged that [the] agreements were used as the means to maintain and achieve the end result of the conspiracy by controlling the supply, and thereby permitting increases in the price for the products. While these allegations may not expressly state that the agreements themselves were illegal, they nonetheless may be considered with the pleadings as a whole in determining the existence of a 'plausible' conspiracy." (citations and footnote omitted) ).

As the court accepts all allegations at the Rule 12 stage as true, the court finds that a reasonable inference could be drawn that defendants conspired to unlawfully boost the price of Acthar, restrict its output, and eliminate competition in violation of federal antitrust law when Mallinckrodt instituted its "new strategy." The goal of the exclusive dealing arrangement was "to lock patients into receiving Acthar through one channel and prevent a competitive product from entering the market." SAC ¶ 222 (emphasis added). Express Scripts employed its market power to effectuate these goals, allowing Mallinckrodt to maintain its monopoly, thereby increasing both their profits, and prevent competitors from challenging that monopoly. Thus, Mallinckrodt's decision to purchase the rights to Synacthen "at the eleventh hour" only to "shelve" the product upon acquiring it was simply an intended goal of the ASAP, effectuated by both defendants. Id. ¶¶ 111-114, 145, Specifically, Express Scripts agreed not to push back on Mallinckrodt's decisions to inflate Acthar's price beyond the competitive level, in contrast to when Express Scripts took the opposite approach in 2015 with respect to Turing's drug, Daraprim. Id. ¶¶ 86-88. While defendants appear to isolate the exclusive dealing arrangement from the Synacthen Acquisition, taking the allegations in the SAC as true, plaintiffs allege that these anticompetitive acts were part of the same conspiracy. Id. ¶¶ 231, 250. The court anticipates that further discovery will shed light on Express Scripts' knowledge of and role in the Synacthen Acquisition, if any. But at this stage of litigation, the court draws all reasonable inferences from the complaint in favor of plaintiffs and taking the SAC as a whole finds that plaintiffs have sufficiently alleged a conspiracy.

Defendants cite In re ATM Fee Antitrust Litigation to argue that allegations of a vertical conspiracy pursuant to the "co-conspirator" exception must include the allegation that "the conspiracy must fix the price paid by the plaintiffs," and because plaintiffs failed to allege that defendants fixed the price paid by plaintiffs, Illinois Brick still applies. 686 F.3d 741, 750 (9th Cir. 2012) (emphasis added); see also Dickson v. Microsoft Corp., 309 F.3d 193, 214-215 (4th Cir. 2002) (noting in dicta that "the rationale for concluding that Illinois Brick does not apply to a price-fixing conspiracy is that no overcharge has been passed on to the consumer: When a dealer has illegally conspired with a manufacturer with respect to the price paid by a consumer, then the consumer is the only party who has paid any overcharge"). In particular, Mallinckrodt argues that the SAC contains "no plausible allegations that the prices that Plaintiffs paid were set by an agreement between [defendants]" because "ESI charged Rockford for Acthar pursuant to the terms of a separate agreement between Rockford and ESI," and "Acument contracted with CVS for the provision of speciality drugs like Acthar and made direct payments to CVS. Similarly, Express Scripts argues that plaintiffs "repeatedly plead[ ] facts illustrating that Mallinckrodt unilaterally sets the [average wholesale price] for Acthar." (emphasis in original).

But ATM Fee expressly noted that the Seventh Circuit takes a different approach. See ATM Fee, 686 F.3d at 755 n.7 (citing Paper Systems, 281 F.3d at 631-32 ) (noting that the Seventh and Third Circuits "restrict Illinois Brick's influence by allowing an exception when the direct purchaser conspires with the seller, even though the price illegally set is an upstream cost that is passed-on to the plaintiffs"). In Paper Systems, for example, the Seventh Circuit explained that the crux of the "co-conspirator" exception is the joint-and-several liability of conspiring defendants: "If [the defendant] was among those conspirators, then it is responsible for the entire overcharge of all five [defendant] manufacturers-and any direct purchaser from any conspirator can collect its own portion of damages (that is, the damages attributable to its direct purchases) from any conspirator." 281 F.3d at 632 (emphasis in original); see also In re Brand Name Prescription Drugs Antitrust Litig., 186 F.3d 781, 787 (7th Cir. 1999) ("[I]t was necessary for [plaintiffs] to present economic evidence that would show that the hypothesis of collusive action was more plausible than that of individual action. They did not, however, as the defendant manufacturers rather absurdly argue, have to exclude all possibility that the manufacturers' price discrimination was unilateral rather than collusive."); Fontana Aviation, Inc. v. Cessna Aircraft Co., 617 F.2d 478, 481 (7th Cir. 1980) ("Standing separately some of the allegations may be of no antitrust concern, but if all of [the defendant's] alleged activities were combined and coordinated with the intent to destroy [the plaintiff], its target, as a competitor, the allegations, whatever their merit, should be judged as a whole and not separately."); Kleen Prod. LLC v. Int'l Paper, 306 F.R.D. 585, 608 (N.D. Ill. 2015)aff'd sub nom. Kleen Prod. LLC v. Int'l Paper Co., 831 F.3d 919, 930 (7th Cir. 2016) (stating axiomatically that plaintiffs may also sue co-conspirators that are vertically connected to an upstream defendant in antitrust actions because co-conspirators are jointly and severally liable for alleged antitrust violations). Plaintiffs allege that defendants are jointly and severally liable for the alleged antitrust violations that plaintiffs (and the class) directly and wholly felt. Paper Systems, 281 F.3d at 632-34 (noting that joint and several liability is a "vital instrument for maximizing deterrence," so "[a]s long as [defendants'] direct customers hold the exclusive right to [100% of] damages for its own output, the holding and goals of Illinois Brick have been satisfied"). That plaintiffs contracted directly with Express Scripts on Acthar's price does not negate the inference that Express Scripts allegedly agreed with Mallinckrodt to price-fix.

Further, the three concerns highlighted by Illinois Brick are not of concern in the instant case. First, there is no risk of duplicative liability or potentially inconsistent judgments because plaintiffs and Express Scripts would not be suing for the same injury given plaintiffs' allegations that Express Scripts took part in the price-fixing that allegedly injured plaintiffs. Second, permitting plaintiffs to sue would not cause inefficient enforcement of the antitrust laws by diluting the ultimate recovery and thus decreasing direct purchasers' incentive to sue. Though the court notes that there are no allegations that would lead Express Scripts to seek recovery for any such overcharge in subsequent lawsuits, it would still be able to recover the same amount on their hypothetical lost profits claim even if plaintiffs recovered on their separate price-fixing claims. Third, Illinois Brick warned against requiring courts to ascertain the portion of an overcharge that was passed on. But here, plaintiffs do not allege that defendants' agreement in fact included a "pass-on" payment. Rather, plaintiffs allege that defendants agreed on what share of the payment Express Scripts would receive, and then Express Scripts would simply deduct its agreed-upon share before forwarding the remainder to Mallinckrodt, see SAC ¶ 20; the court would simply look to the amount deducted by Express Scripts to ascertain the portion of the overcharge. While plaintiffs do not allege what that amount is, defendants do not explain why that amount would be difficult to ascertain.

In sum, plaintiffs allege circumstantial evidence to support their argument that defendants agreed to a vertical price-fixing scheme. Discovery may illuminate that Express Scripts did not in fact play a role in the Synacthen Acquisition, that defendants had no intention of effecting harm to the market through the exclusive dealing arrangement, and/or that Mallinckrodt conducted its allegedly unlawful conduct separate and apart from its business associations with Express Scripts. Indeed, plaintiffs will be required later in litigation to provide evidence "that tends to exclude the possibility that the alleged conspirators acted independently." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). But at the Rule 12 stage, the court draws all reasonable inferences in favor of plaintiffs, and finds that Illinois Brick is not a bar to plaintiffs' claims.

b. AGC

Aside from Illinois Brick, another antitrust standing limitation imposed on parties bringing antitrust actions comes from AGC. In determining whether an antitrust plaintiff is a "proper party" to bring suit under AGC, courts look at the following factors: (1) the causal connection between the violation and the harm; (2) the presence of improper motive; (3) the type of injury and whether it was one Congress sought to redress; (4) the directness of the injury; (5) the speculative nature of the damages; and (6) the risk of duplicate recovery or complex damage apportionment. 459 U.S. at 537-45, 103 S.Ct. 897.

The court finds that Rockford alleges that it is a proper party to bring its federal antitrust claims and thus satisfies the AGC factors. Rockford has plausibly alleged that, as a direct cause of defendants' purported conspiracy, it was injured by being forced to pay higher prices for Acthar than it would have but for the agreements of the defendants and the Synacthen Acquisition which together prevented a low-cost alternative entering the market. See SAC ¶ 151. Further, as detailed below in the court's discussion of plaintiffs' § 2 claims, Rockford has plausibly alleged that defendants had the specific intent to create anticompetitive effects through the conspiracy, thus establishing an improper motive. And at this time, the court finds no concerns such as speculative damages, duplicative recovery, or apportionment issues that cast doubt on the propriety of Rockford bringing its federal antitrust claims against either defendant. The injuries alleged in the SAC are precisely the types of injuries that Congress sought to redress in creating the Sherman Act-those being, "reduced output and higher prices," as well as the unlawful elimination of competition. U.S. Gypsum Co. v. Ind. Gas Co., Inc., 350 F.3d 623, 626-27 (7th Cir. 2003). Consequently, the court finds that Rockford has antitrust standing to brings it federal antitrust claims.

3. Acument's Antitrust Standing for Federal Claims

While the court finds that the SAC plausibly alleges an antitrust conspiracy between Mallinckrodt and Express Scripts, there is an additional wrinkle concerning the "directness" of Acument's purchasing relationship to Express Scripts because plaintiffs allege that Acument paid CVS for Acthar and not ESI. Specifically, they allege that,

when Acument contracted with CVS Caremark for the provision of specialty drugs, like Acthar, to its employee beneficiaries, CVS Caremark simply charged the same prices based on the prices set by Mallinckrodt in agreement with Express Scripts, as the product continued to flow directly from Express Scripts to the patients of other PBMs, like CVS Caremark...."[S]uch payments were transferred by CVS Caremark to Mallinckrodt pursuant to a likely understanding between the two that the total amount would be forwarded to Mallinckrodt, less a certain amount previously agreed to by Mallinckrodt and CVS Caremark."

SAC ¶¶ 70, 72, 196, 246 (emphasis added).

Plaintiffs do not sufficiently plead that CVS was a member of the conspiracy merely by alleging that CVS operated in the same fashion as Express Scripts, see id. ¶¶ 233-234, or that Mallinckrodt had a "likely understanding" with CVS, which mirrored the arrangement it had with Express Scripts, id. ¶ 196. Otherwise, the SAC contains scant mentions of CVS and its role as part of the dealing arrangement alleged in all other respects to be exclusive. As currently formulated, plaintiffs do not plausibly allege that Acument was a direct purchaser from a member of the alleged conspiracy, nor does Acument plausibly allege any other theory which would furnish antitrust standing to it. As such, Acument cannot state a claim against either Mallinckrodt or Express Scripts.

AGC also presents a problem here, albeit less of a problem than Illinois Brick. It appears that the allegations in the SAC may satisfy the AGC factors as applied to Acument. But until we know the contours of CVS' role in supplying Acthar to Acument's employee's spouse, the court is not able to engage in a complete application of the AGC factors to Acument.

Thus, the court dismisses without prejudice Acument's federal antitrust claims against Mallinckrodt and Express Scripts. The court grants plaintiffs leave to replead to correct Counts VI and VII's deficiencies.

The court now turns to the merits of Rockford's §§ 1 and 2 claims under the Sherman Act.

4. § 1 (Count VII)

Section 1 of the Sherman Act prohibits "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce." 15 U.S.C. § 1. Only those agreements that are unreasonable restraints on trade are actionable under § 1. See Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 705 (7th Cir. 2011) (citing State Oil Co. v. Khan, 522 U.S. 3, 10, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) ). To state § 1 claims, plaintiffs must plead facts plausibly suggesting: (1) a contract, combination, or conspiracy (meaning, an agreement); (2) a resulting unreasonable restraint of trade in a relevant market; and (3) an accompanying "antitrust injury." See Agnew v. NCAA, 683 F.3d 328, 335 (7th Cir. 2012). As the court detailed in the section on antitrust standing, plaintiffs satisfied the first prong by alleging with sufficient factual support that defendants contracted among themselves and conspired to vertically fix Acthar's price and maintain Mallinckrodt's monopoly. See, e.g., SAC ¶¶ 5, 7-8, 48-49, 111-114, 145, 222. The court will turn to the remaining two prongs.

a. Unreasonable Restraint of Trade

The "unreasonable restraint of trade" prong asks courts to assess "the competitive effects of challenged behavior relative to such alternatives as its abandonment or a less restrictive substitute." Id. Courts use one of three tests to determine the challenged behavior. Courts use a "per se" test for conduct such as horizontal price fixing, market allocation, group boycotts, or tying arrangements that are so inherently anticompetitive, they are considered illegal per se. See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984). In contrast, vertical arrangements such as exclusive distribution agreements are analyzed under the "rule of reason" test, which assigns the burden to plaintiffs to sufficiently allege that an agreement has an anticompetitive effect on a given market within a given geographic area. See Methodist Health Servs. Corp. v. OSF Healthcare Sys., No. 1:13-cv-01054-SLD-JEH, 2016 WL 5817176, at *8 (C.D. Ill. Sept. 30, 2016) (citing Roland Machinery Co. v. Dresser Indus., Inc., 749 F.2d 380, 393 (7th Cir. 1984) ). More often than not, courts use the "rule of reason" test and not the "per se" test. See State Oil, 522 U.S. at 10, 118 S.Ct. 275. Courts sometimes employ a third test, known as the "quick-look" test, for conduct that is not plainly anticompetitive but where "no elaborate industry analysis is required to demonstrate the anticompetitive character of ... an agreement." Nat'l Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 692, 98 S.Ct. 1355, 55 L.Ed.2d 637 (1978).

Rockford alleges two anticompetitive understandings-the exclusive dealing arrangement and the Synacthen Acquisition-that together form the basis of their § 1 claims. While courts generally assess exclusive dealing arrangements under the rule of reason analysis, it is less clear that the rule of reason analysis applies here where plaintiffs have alleged that the conspiracy included both the exclusive dealing arrangement and the Synacthen Acquisition, which plaintiff argues deserves a "per se" analysis. However, the court agrees with plaintiffs that the court need not make this determination at this time. See In re: EpiPen (Epinephrine Injection, USP) Mktg., Sales Practices & Antitrust Litig., 336 F.Supp.3d 1256, 1297 n.8 (D. Kan. 2018) ("In ruling [on a motion to dismiss], the court just needs to determine whether the class plaintiffs have alleged a plausible conspiracy under the antitrust laws."); CSR Ltd. v. Fed. Ins. Co., 40 F.Supp.2d 559, 564 (D.N.J. 1998) ("At this early [motion to dismiss] stage of the proceeding, the court does not find it necessary to determine which mode of analysis [per se or rule of reason] it will ultimately employ in evaluating the defendants' activities."); 2 AREEDA & HOVENKAMP , ANTITRUST LAW 264 ¶ 305(e), at 69 ("Often, however, the decision about which rule is to be employed will await facts that are developed only in discovery."). After discovery, the court can better determine whether and how to take a more detailed look at the effects of defendants' conduct. See, e.g., EpiPen, 336 F.Supp.3d at 1292-93 (noting that if the court applied a rule of reason analysis to the exclusive dealing arrangement in that case, it would consider a "number of factors" from Tampa Elec. Co. v. Nashville Coal Co., 365 U.S. 320, 327, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961), to determine whether a "substantial foreclosure of the market" occurred, making the conduct unreasonable). Discovery will elucidate whether the purported conspiracy as a whole is patently anticompetitive "such as would always or almost always tend to restrict competition and decrease output." See id. at 565 (citing Nw. Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472 U.S. 284, 289, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985). At this stage, it is sufficient for plaintiffs to plausibly allege that defendants engaged in conduct that resulted in an unreasonable restraint of trade.

Rockford alleges that defendants conspired to keep prices high, restrict output, and prevent competition from entering the market. The "new strategy" reduced the number of wholesale distributors of Acthar from three to one, thereby restricting patient's access to Acthar, and employed Express Scripts' market power not to push for lower-cost alternatives. SAC ¶¶ 48, 103. The ASAP thus allowed Mallinckrodt to maintain its dominant monopoly power in the ACTH drug market, maintain prices at artificially high levels, and exclude less expensive competitive products from the ACTH drug market.

The other focus of the SAC is the exclusion of competitive alternatives to the market and highlights the Synacthen Acquisition. Because Retrophin planned to bring Synacthen to market as the first viable competitor to Acthar, keeping Synacthen from the United States market resulted in complaints filed by the FTC and Retrophin for depriving the market of a lower-cost alternative with no procompetitive justifications. Id. ¶ 151. The elimination of competition with no procompetitive justification is the type of conduct that the antitrust laws were designed to guard against. See In re Dealer Mgmt. Sys. Antitrust Litig., 313 F.Supp.3d 931, 950 (N.D. Ill. 2018) (citing Havoco of Am., Ltd. v. Shell Oil Co., 626 F.2d 549, 556 (7th Cir. 1980) (citation omitted) ). Consequently, the court finds that Rockford's assertions of anticompetitive conduct are sufficient to adequately plead the "unreasonable restraint of trade" prong of Rockford's § 1 claim.

b. Antitrust Injury

The third prong requires that an antitrust plaintiff must allege that the "claimed injuries are of the type the antitrust laws were intended to prevent and reflect the anticompetitive effect of either the violation of or anticompetitive acts made possible by the violation." Kochert, 463 F.3d at 716 ; see also Agnew, 683 F.3d at 334-35 ("The purpose of the Sherman Act is to protect consumers from injury that results from diminished competition. Thus the plaintiff must allege, not only an injury to himself, but an injury to the market as well." (citation omitted) ); Gypsum, 350 F.3d at 626-27 ("A private plaintiff must show antitrust injury-which is to say, injury by reason of those things that make the practice unlawful, such as reduced output and higher prices."). Rockford alleges that defendants were able to charge higher prices for Acthar by restricting distribution of Acthar through the ASAP. SAC ¶ 8. "Paying higher prices as a result of coordinated output restrictions is a paradigmatic antitrust injury." Wash. Cty. Health Care Auth., Inc. v. Baxter Int'l Inc., 328 F.Supp.3d 824, 845 (N.D. Ill. 2018). Further, Rockford alleges that Retrophin planned to bring Acthar to market and that defendants' decision to shelve Synacthen rather than bring it to market stifled competition. Had Novartis sold the rights to Synacthen to one of the other bidders that planned to bring Acthar to market, Rockford alleges that purchasers would have had a low-cost alternative to Acthar. See SAC ¶¶ 146-147. This is the type of injury that antitrust laws were intended to prevent. See Gypsum, 350 F.3d at 627 ("The antitrust-injury doctrine was created to filter out complaints by competitors and others who may be hurt by productive efficiencies, higher output, and lower prices, all of which the antitrust laws are designed to encourage."); Teamsters, 196 F.3d at 825 ("To recover under the antitrust laws, the plaintiff must show that its injury flows from that which makes the conduct an antitrust problem: higher prices and lower output."). Thus, Rockford has satisfied the "antitrust injury" prong and, accordingly, the court finds that Rockford has stated a § 1 claim.

5. § 2 (Count VI)

Rockford alleges that defendants acted and conspired to monopolize the ACTH drug market in violation of § 2. See 15 U.S.C. § 2. A conspiracy to monopolize consists of (1) the existence of a combination or conspiracy, (2) overt acts in furtherance of the conspiracy, (3) an effect upon a substantial amount of interstate commerce, and (4) the existence of specific intent to monopolize. See The Great Escape, Inc. v. Union City Body Co., 791 F.2d 532, 540-41 (7th Cir. 1986).

The first prong of this test is sufficiently pled. Plaintiffs allege that Mallinckrodt initiated its "new strategy" to limit Acthar's distribution to one distributor, Express Scripts. Id. ¶¶ 48-49, 221, 231. Plaintiffs allege that Mallinckrodt was acting in concert with Express Scripts in an exclusive dealing arrangement well before the Synacthen Acquisition, and thus, plaintiffs plausibly allege that defendants' conspiracy encompassed and facilitated the Acquisition. As to the third prong, the parties do not dispute that as pled the alleged conspiracy affects a substantial amount of interstate commerce. See SAC ¶ 19. With respect to the fourth prong, in cases such as this that involve exclusive dealing arrangements, courts typically infer a sufficient allegation of specific intent when overt acts are adequately pled. See Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 459, 113 S.Ct. 884, 122 L.Ed.2d 247 (1993) (explaining that anticompetitive conduct "may be sufficient to prove the necessary intent to monopolize"). The court agrees with this inferential analysis, particularly because "[c]ourts are wary to dismiss antitrust cases on intent solely on the pleadings because evidence of intent is often in the control of the defendants." Wagner v. Magellan Health Servs., Inc., 121 F.Supp.2d 673, 681 (N.D. Ill. 2000).

In addressing the second prong, similar to § 1's "anticompetitive effects" requirement, plaintiffs must allege that the overt acts constitute "anticompetitive conduct." See Verizon Commc'ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 407, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004) ("To safeguard the incentive to innovate, the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct." (emphasis in original) ); Endsley v. City of Chicago, 230 F.3d 276, 283 (7th Cir. 2000) ("Under § 2, intent to obtain a monopoly is unlawful only where an entity seeks to maintain or achieve monopoly power by anticompetitive means."); Am. Acad. Suppliers, Inc. v. Beckley-Cardy, Inc., 922 F.2d 1317, 1320 (7th Cir. 1991) ("The offense of monopolization is the acquisition of monopoly by improper methods or, more commonly ... the abuse of monopoly." (emphasis in original) ). The acts from which the court can infer anticompetitive conduct must be essentially "predatory" in nature. See Mercatus Grp., LLC v. Lake Forest Hosp., 641 F.3d 834, 854 (7th Cir. 2011). Exclusionary, predatory, or anticompetitive conduct for purposes of § 2 claims is broadly defined as "conduct that is in itself an independent violation of the antitrust laws or that has no legitimate business justification other than to destroy or damage competition." The Great Escape, 791 F.2d at 541 ; DSM Desotech Inc. v. 3D Sys. Corp., No. 08 CV 1531, 2009 WL 174989, at *9 (N.D. Ill. Jan. 26, 2009).

While analysis of this prong can in some cases differ greatly from claims under § 1, for exclusive dealing claims brought under § 2, the analysis nearly the same as that for § 1 claims. This makes sense given that a plaintiff alleging an "unreasonable restraint of trade" would typically be required to allege that a defendant undertook "overt acts" to effectuate the restraint. Methodist Health, 2016 WL 5817176, at *8 (noting that § 2 claims that allege antitrust violations based on exclusive dealing arrangements "are analyzed in much the same way as § 1 claims"). The court will await discovery to determine how to best characterize defendants' conduct. But at this stage, the court finds that Rockford has plausibly alleged that defendants' conduct was anticompetitive under the Seventh Circuit's broad definition of exclusionary, predatory, or anticompetitive conduct. As noted with respect to Rockford's § 1 claims, Rockford alleged that defendants conspired to price-fix and prevent competitors from entering the market, implemented through a joint-effort (the ASAP) that allowed Mallinckrodt to unlawfully acquire the rights to Synacthen. One can plausibly infer that the Synacthen Acquisition and Mallinckrodt's immediate "shelving" of Synacthen had no legitimate business justification and resulted in the maintenance and entrenchment of Mallinckrodt's monopoly.

Further, like claims under § 1, a plaintiff alleging a § 2 claim must also allege an "antitrust injury." See O.K. Sand & Gravel, Inc. v. Martin Marietta Techs., Inc., 36 F.3d 565, 573 (7th Cir. 1994) ; see also Magnetar Techs. Corp. v. Intamin, Ltd., 801 F.3d 1150, 1158, 1158 n.2 (9th Cir. 2015) (noting the § 2 requirement of antitrust injury under a conspiracy-to-monopolize theory specifically). As noted in the section concerning Rockford's § 1 claims, Rockford has satisfied that requirement. See Wagner, 121 F.Supp.2d at 681 (analyzing "antitrust injury" under § 1 and § 2 together). Thus, at this stage, all the § 2 prongs are sufficiently pled, and accordingly, Rockford has stated a § 2 claim.

Accordingly, the court denies defendants' motions to dismiss Counts VI and VII as to Rockford, finding that Rockford has antitrust standing to bring these claims and has met its burden at the Rule 12 stage. The court grants defendants' motions to dismiss Counts VI and VII as to Acument without prejudice, and grants plaintiffs leave to replead to correct the deficiencies noted by the court related to Acument's antitrust standing to bring its federal antitrust claims if it can do so consistent with its obligations under Rule 11 of the Federal Rules of Civil Procedure.

B. State-Law Antitrust and Consumer Protection Claims (Count VIII)

Plaintiffs bring various state-law antitrust and consumer protection claims against defendants. Defendants put forth three separate arguments as to why plaintiffs' state-law claims should be dismissed. Their first argument is that plaintiffs lack constitutional standing under Article III to bring claims of unnamed class members. Second, defendants claim that plaintiffs are not the "proper parties" to bring suit under AGC. Third, defendants maintain that certain limitations germane to specific states implicated by plaintiffs' claims act as additional barriers to plaintiffs bringing suit under those states. The court will assess these arguments in turn.

1. Article III Standing for Claims of Unnamed Class Members

Although defendants do not dispute plaintiffs' Article III standing to pursue their federal claims, defendants challenge plaintiffs' Article III standing to bring state-law claims on behalf of the unnamed class members. The issue before the court then is whether Article III standing is properly alleged for plaintiffs' state-law claims based in jurisdictions in which a named plaintiff is not alleged to have suffered injury and thus Rockford and Acument cannot be said to have personally experienced injury based on defendants' conduct. But first the court must decide whether it should rule on plaintiffs' Article III standing to represent these claims now or as an alternative defer that ruling until the class certification stage.

Courts across this country are split on this timing issue. See McDonnell v. Nature's Way Prods., LLC, No. 16 C 5011, 2017 WL 1149336, at *5 (N.D. Ill. Mar. 28, 2017) (collecting cases and noting that "[c]ourts in this district ... are divided as to whether these decisions require a plaintiff to establish standing at the pleading stage to pursue claims under state laws in which that plaintiff does not reside or cannot claim to have personally suffered an injury"); see also 1 WILLIAM B. RUBENSTEIN , NEWBERG ON CLASS ACTIONS § 2 : 6 (5th ed. 2013) (noting that the issue of whether a plaintiff may represent a class of another state's residents that plaintiff was not herself injured within is not a pure question of standing, but rather, a hybrid of both standing and class representation). Plaintiffs point to the decisions of courts that hold that, "at the pleading stage and prior to analysis of the class allegations under Rule 23," where a named plaintiff is able to establish Article III standing and injury-in-fact in its own jurisdiction, this "suffices to establish the named plaintiffs' standing to assert the claims of class members in other states." In re Broiler Chicken Antitrust Litigation, 290 F.Supp.3d 772, 809-10 (N.D. Ill. 2017) ("[N]amed plaintiffs who represent a class must allege and show that they have personally been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent." (quoting In re Plasma-Derivative Protein Therapies Anitrust Litig., No. MDL 2109, 2012 WL 39766, at *6 (N.D. Ill. Jan. 9, 2012) ) ); see also Payton v. Cty. of Kane, 308 F.3d 673, 680 (7th Cir. 2002) (explaining that only "once a class is properly certified" should "standing requirements ... be assessed with reference to the class as a whole" as opposed to "the individual named plaintiffs" (emphasis added) );

Supreme Auto Trans. LLC v. Arcelor Mittal, 238 F.Supp.3d 1032, 1038 (N.D. Ill. 2017) ("For now, whether named plaintiffs can bring claims under the laws of other states and whether plaintiffs are adequate class representatives do not pose Article III barriers to subject-matter jurisdiction.").

One court in this district discussed Halperin v. International Web Services, LLC, 123 F.Supp.3d 999, 1009 (N.D. Ill. 2015), and noted that the defendant's argument in Halperin (that the plaintiff lacked standing to raise claims under the nine state consumer protection laws other than Illinois') was "more accurately characterized as an attack not on Halperin's Article III standing per se... but rather on his ability under Rule 23 to represent the multi-state class." In re Herbal Supplements Mktg. & Sales Practices Litig., No. 15-cv-5070, 2017 WL 2215025, at *6 (N.D. Ill. May 19, 2017) (St. Eve, J.) (emphasis in original). The court finds the analysis contained within Herbal Supplements persuasive. What defendants here are really challenging is the adequacy of Rockford and Acument to represent the unnamed class members' state-law antitrust claims. Plaintiffs' "capacit[ies] to represent individuals from other states depends upon obtaining class certification, and the standing issue would not exist but for their assertion of state law claims on behalf of class members in those states. These standing issues therefore arise from [plaintiffs'] attempt to represent the multistate class, making class certification issues 'logically antecedent' to the standing concerns." McDonnell, 2017 WL 1149336, at *5. The court is persuaded that plaintiffs' argument adheres best to the Supreme Court's holding that "the standing issue focuses on whether the [named] plaintiff is properly before the court, not whether represented parties or absent class members are properly before the court," and applies that reasoning to this case. Lewis v. Casey, 518 U.S. 343, 395, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) ; accord. Morrison v. YTB Int'l, Inc., 649 F.3d 533, 535-36 (7th Cir. 2011) ; In re Fluidmaster, Inc., 149 F.Supp.3d 940, 957-58 (N.D. Ill. 2016) (Dow, J.). Thus, the court need not address Article III standing with respect to claims based on injuries incurred by unnamed class members until some later appropriate stage of the proceedings.

2. Rockford's Antitrust Standing for State-Law Claims

Defendants also argue that the proximate-cause limitation under AGC applies to plaintiffs' attempt to bring state-law claims for the unnamed class members. Unlike Article III standing, for the state-law antitrust and consumer protection claims, the parties do not direct the court to any authority that suggests the court should defer ruling on this issue until the Rule 23 stage. Thus, the court will determine this issue now.

Generally, in deciding whether to apply AGC to state-law antitrust claims, courts look to whether the relevant states' highest courts have ruled on the issue. Broiler Chicken, 290 F.Supp.3d at 814-15 (citing ADT Sec. Servs., Inc. v. Lisle-Woodridge Fire Prot. Dist., 672 F.3d 492, 498 (7th Cir. 2012) ). However, federal courts have tied themselves in knots attempting to interpret the decisions of state courts on this issue. See id.; In re Dairy Farmers of America, Inc. Cheese Antitrust Litigation, 2015 WL 3988488, at *7 (N.D. Ill. June 29, 2015) ;

In re Lithium Ion Batteries Antitrust Litig., No. 13-MD-2420 YGR, 2014 WL 4955377, at *9 (N.D. Cal. Oct. 2, 2014) ; see also Kelly S. Dwyer, With the Illinois Brick Wall Down, What's Left?: Determining Antitrust Standing Under State Law, 3 J. BUS. ENTREPRENEURSHIP & L. 255 (2010) (noting that the complexity of this issue has resulted in a "number of splintered opinions"). Many courts that embark upon the endeavor do so in relative cursory fashion, relying heavily on the parties' briefings. See, e.g., Arcelor, 238 F.Supp.3d at 1038-39. Some courts eschew the task all-together, and instead assume arguendo that each state at issue has adopted the full AGC test and conclude that if plaintiffs' antitrust allegations pass muster under the full AGC test then it follows that they will comply with the "proper party" test of any state, including those that have less stringent requirements. See, e.g., Lithium, 2014 WL 4955377, at *11 & n.13 (listing cases that have taken the same approach). Here, the court has already determined that Rockford satisfies the full AGC test for their federal claims. Thus, for Rockford, the court need not embark on the "back-breaking labor involved in deciphering the state of antitrust standing in each of th[e] states," Flash Memory, 643 F.Supp.2d at 1153, because the court has already determined that plaintiffs satisfied the federal proximate-cause standard. Courts especially take this approach where "[n]either party has provided the [c]ourt with the requisite, individualized analysis on a per state basis to enable the [c]ourt to render such a determination." Id. Defendants argue that Mallinckrodt "devoted over a page of argument to the issue, with supporting authorities." But nowhere in defendants' briefs is there a state-by-state analysis of how AGC interacts with the respective states' statutes; Mallinckrodt's only related argument to this point is a footnote summarily stating that "[a] number of [these] state courts have expressly adopted AGC or held that at least some of the AGC factors should be applied to state antitrust claims." Thus, because the court has already concluded that Rockford satisfies the AGC factors with respect to its federal claims, finding that it would be a "proper party" under AGC's proximate-cause analysis, the court presumes that Rockford would satisfy each states' "proper party" test.

3. Acument's Antitrust Standing for State-Law Claims

Conversely, the court finds that Acument would not meet even the least stringent state's "proximate cause" test. To reiterate this opinion's section on the application of AGC to Acument's federal antitrust claims, the SAC lacks sufficient allegations to allow the court to determine how Acument's injuries in Tennessee are connected to defendants' conduct. Thus, the court grants defendants' motions to dismiss Count VIII as it pertains to Acument. The court grants plaintiffs leave to replead to correct the deficiencies associated with Acument's "proper party" status concerning its state-law claims.

4. Statutory Limitations

In addition to the aforementioned standing arguments, defendants also bring a litany of challenges to plaintiffs' state-law claims based on plaintiffs' failure to comply with or allege requirements particular to each state's antitrust laws. The twenty-four state statutes invoked in the SAC are those of Arizona, Arkansas, California, Florida, Hawaii, Illinois, Iowa, Kansas, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Mexico, New York, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Tennessee, Utah, and Wisconsin. Defendants cite limitations specific to some of these states that defendants contend defeat most of plaintiffs' state-law claims. The court will address these specific limitations in turn.

a. Arizona, California, Florida, Hawaii, Iowa, Kansas, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, New Mexico, New York, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Tennessee, and Wisconsin

Defendants' briefing on this issue is cursory. Mallinckrodt simply argues that "[t]he antitrust laws of these states limit their reach to activities which occur within the state. Because Plaintiffs fail to allege conduct within those states that would violate the respective statutes, each claim should be dismissed." Similarly, for the consumer protection statutes, defendants argue that those statutes only concern "intrastate" activity. The court finds that plaintiffs have met their bare pleading requirements at this stage that unnamed class members purchased Acthar in these states. See SAC ¶¶ 260-266, 269-289, 293-336, 341-348, 353-356. Later stages in this litigation, including the Rule 23 stage, will allow the court to more definitively determine whether any unnamed class members purchased Acthar in these states.

However, as noted in the previous section, the SAC does not sufficiently allege that Acument is a proper party to bring any antitrust or consumer protection claims (federal or state). Thus, with leave to replead, the court dismisses Count VIII to the extent Acument seeks to represent the claims of unnamed class members-including those in Tennessee.

b. Arkansas

The Arkansas Deceptive Trade Practices Act (the "ADTPA") prohibits a variety of conduct, including "[d]ecepti