Full opinion text
MEMORANDUM OF DECISION AND ORDER STEFAN R. UNDERHILL, District Judge. This case aggregates numerous antitrust actions brought by numerous plaintiffs in various districts against several interrelated pharmaceutical companies, all transferred to this Court by the Judicial Panel on Multidistrict Litigation. Under a Practice and Procedure Order (doc. # 37), the actions are consolidated into two groups: all direct-purchaser actions, and all indirect-purchaser actions (the indirect purchasers also style themselves “end pay-ors”). Two consolidated, putative class-action complaints have accordingly been filed. One of the indirect purchasers (or end payors), Humana, Inc. (“Humana”), which alleges that it has the greatest economic interest of any such plaintiff (and that it alone has standing in every state), is pursuing its claims individually. There are thus three current complaints: (1) the direct-purchaser plaintiffs’ putative class complaint (doc. # 109); (2) the indirect-purchaser plaintiffs’ (or end-payor plaintiffs’) putative class complaint (doc. # 120); and (3) the Humana complaint (doc. # 93). The defendants are also divisible into several groups: (1) Boehringer Ingelheim Pharma GmbH & Co. KG and Boehringer Ingelheim International GmbH, which are organized under German law, and Boeh-ringer Ingelheim Pharmaceuticals, Inc., which is a Delaware corporation (collectively “Boehringer”); (2) Teva Pharmaceutical Industries, Ltd. (“Teva Israel”), which is organized under Israeli law, and Teva Pharmaceuticals USA, Inc. (“Teva USA”), which is a Delaware corporation; (3) Barr Pharmaceuticals, Inc. and Barr Laboratories, Inc., which are both Delaware corporations (collectively “Barr”); and (4) Du-ramed Pharmaceuticals Inc. and Duramed Pharmaceuticals Sales Corp., which are both Delaware corporations (collectively “Duramed”). In 2008, Teva USA acquired Barr Pharmaceuticals. Duramed was, in turn, a subsidiary of Barr, and thus also became a subsidiary of Teva USA. Teva USA is a subsidiary of Teva Israel, making all non-Boehringer defendants at least indirect subsidiaries of Teva Israel. There are four pending motions to dismiss, three of them filed collectively by all defendants except Teva Israel, and one filed by Teva Israel alone. Those motions are: (1) Teva Israel’s motion to dismiss all complaints against it under Rule 12(b)(2) and Rule 12(b)(6) (doc. # 150); (2) the defendants’ motion to dismiss the direct-purchaser complaint under Rule 12(b)(6) (doc. # 149; sealed mem., doc. 168); (3) the defendants’ motion to dismiss the indirect-purchaser complaint under Rule 12(b)(6) (doc. # 151); and (4) the defendants’ motion to dismiss the Humana complaint under Rule 12(b)(6) (doc. # 152). I. Standards of Review A. Rule 12(b)(2) A plaintiff bears the burden of showing that the court has personal jurisdiction over each defendant. Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.1996). Where, as here, there has been no discovery on jurisdictional issues and the court is relying solely on the parties’ pleadings and affidavits, the plaintiff need only make a prima facie showing that the court possesses personal jurisdiction over the defendant. Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir.1999). B. Rule 12(b)(6) A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) is designed “merely to assess the legal feasibility of a complaint, not to assay the weight of evidence which might be offered in support thereof.” Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980)). When deciding a motion to dismiss pursuant to Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true, draw all reasonable inferences in favor of the plaintiffs, and decide whether it is plausible that plaintiffs have a valid claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir.1996). Under Twombly, “[fjactual allegations must be enough to raise a right to relief above the speculative level,” and assert a cause of action with enough heft to show entitlement to relief and “enough facts to state a claim to relief that is plausible on its face.” 550 U.S. at 555, 570, 127 S.Ct. 1955; see also Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). The plausibility standard set forth in Twombly and Iqbal obligates the plaintiff to “provide the grounds of his entitlement to relief’ through more than “labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quotation marks omitted). Plausibility at the pleading stage is nonetheless distinct from probability, and “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of [the claims] is improbable, and ... recovery is very remote and unlikely.” Id. at 556, 127 S.Ct. 1955 (quotation marks omitted). II. Discussion A. Factual and Legal Background This case arises at the intersection of two areas of law that would seem to be naturally at odds with one another: antitrust law — procompetitive by design— which prohibits certain forms of anticom-petitive conduct, and patent law — anticom-petitive by design — which seeks to encourage innovation by rewarding innovators with limited legal monopolies. The question at the heart of this case is whether a patent-litigation settlement — that is, an agreement to settle litigation that had put the legitimacy of a patent’s grant of monopoly at issue — constituted a violation of antitrust law. Two features dominate the background: (1) the incentives to undertake patent litigation under the Drug Price Competition and Patent Term Restoration Act, commonly known as the Hatch-Wax-man Act, and (2) the uncertain but disruptive effect on such litigation of the Supreme Court’s recent decision in FTC v. Actavis, Inc., — U.S. -, 133 S.Ct. 2223, 186 L.Ed.2d 343 (2013). I discuss each in turn below, followed by a brief recitation of the central facts of this case. 1. The Hatch-Waxman Ad and “Pay for Delay” Settlements A pharmaceutical manufacturer seeking to introduce a new prescription drug to market must first obtain the approval of the FDA by filing .a New Drug Application and undertaking an extensive and expensive testing process to demonstrate that the drug is safe and effective for its intended purpose. Under the Hatch-Wax-man Act, a later manufacturer of a generic equivalent drug need not duplicate that effort, but may instead submit an Abbreviated New Drug Application that relies on the earlier scientific findings related to the already-approved brand-name drug. The abbreviated Hatch-Waxman process benefits consumers by expediting the introduction of low-cost generics to the market. Hatch-Waxman also establishes special procedures relating to patent disputes and contains provisions that encourage patent challenges. A drug manufacturer filing a New Drug Application must list the number and expiration date of any relevant patent, and a manufacturer filing an Abbreviated New Drug Application must indicate the relationship of its generic drug to any such previously-listed patent in one of several ways. The manufacturer of the generic must certify either that no such patent has been filed, that such patent has expired, the date on which such patent will expire, or “that such patent is invalid or will not be infringed by ... the new drug.” 21 U.S.C. § 355(j)(2)(A)(vii)(IV). That assertion of invalidity or non-infringement is known as “Paragraph IV certification,” and insofar as it is inaccurate, it statutorily constitutes infringement, see 35 U.S.C. § 271(e)(2)(A), and may therefore provoke litigation; it thus provides a procedure for challenging drug patents without starting production and sales of a possibly-infringing drug and potentially accruing damages. After Paragraph IV certification, the brand-name manufacturer may bring an infringement suit within 45 days and trigger an automatic stay of FDA approval of the generic for 30 months or, if it requires less time than that, until adjudication of the validity of the challenged patent in a district court. See 21 U.S.C. § 355(j)(5)(B)(iii). As an incentive to make such challenges, Hatch-Waxman provides an exclusivity period of 180 days (from the first marketing of the generic) to the first manufacturer to file an Abbreviated New Drug Application with Paragraph IV certification, during which time no other Abbreviated New Drug Application will be approved. See § 355(j)(5)(B)(iv). The Supreme Court in Actavis observed that the 180-day exclusivity period can be tremendously valuable, possibly worth hundreds of millions of dollars and a majority of the potential profits for a generic drug. 133 S.Ct. at 2229 (citing scholarship and a statement of the Generic Pharmaceutical Association). Manufacturers of generic drugs have obvious motivation to bring Paragraph IV challenges to patents they believe are vulnerable; and because brand-name drugs sell at such high premiums, their manufacturers have obvious motivation to meet those challenges with infringement suits. But defending patents can be expensive, so brand-name manufacturers may also be motivated to settle the suits — all the more so if they suspect their challenged patents may indeed be vulnerable. Such settlements result in unusual dynamics. For instance, it sometimes happens that the parties settle under terms that require the plaintiff patent-holder to pay the defendant infringer — sometimes called a “reverse payment” settlement agreement— and to permit the defendant to begin producing a generic at a future date, but a date that is earlier than the expiration of the patent, in exchange for the defendant dropping its patent challenge. Assuming the patent is valid, and that the patent-holder would ultimately prevail, such a settlement means that the patent-holder is avoiding the cost of litigation by agreeing to shorten the length of its legal monopoly and to share some of its monopoly profits with the challenger. Consumers benefit by enjoying the lower prices of generics sooner than they otherwise would under the patent. Assuming, however, that the patent is invalid, and that the challenger would ultimately prevail, then such a settlement amounts to a “pay to delay” agreement: the patent-holder’s monopoly is illegitimate, and it is paying a would-be competitor to delay its entry into the market. Consumers who should enjoy competitive prices now will instead pay monopoly prices until the end of the term of the anticompetitive collusion. The availability of such settlements allows manufacturers of brand-name drugs to avoid the invalidation of potentially weak patents and keep prices high by sharing their monopoly profits with manufacturers of generics. Is that an antitrust violation? Several courts of appeals, including the Second Circuit, have said no, at least absent fraud in obtaining the patent and so long as the settlement terms are within its scope (i. e., consumers will not face a longer period of monopoly under the settlement than they would have faced under the patent, implicitly presuming the patent’s validity). See, e.g., In re Tamoxifen Citrate Antitrust Litig., 466 F.3d 187 (2d Cir.2006); In re Ciprofloxacin Hydrochloride Antitrust Litig., 544 F.3d 1323 (Fed.Cir.2008). Other courts of appeals have said yes, at least unless a presumption of unlawful restraint of trade is rebutted. See, e.g., In re K-Dur Antitrust Litig., 686 F.3d 197 (8d Cir.2012); In re Cardizem CD Antitrust Litig., 332 F.3d 896 (6th Cir.2003). The Supreme Court in Actavis, abrogating those decisions, said “sometimes.” 2. The Actavis Decision The facts of Actavis in most essentials follow the discussion above: Solvay Pharmaceuticals filed a New Drug Application for a brand-name drug, obtained approval, and later a patent. Actavis,'Inc. (among others) filed an Abbreviated New Drug Application for a generic equivalent and certified under Paragraph IV that Solvay’s patent was invalid and the proposed generic would not infringe it. Solvay responded with litigation, which later settled, and the terms of the settlement guaranteed Acta-vis millions of dollars in annual payments from Solvay and allowed it to bring its generic to market at some time before the disputed patent expired, but not immediately. Actavis also agreed to provide some services, such as promoting the brand-name drug, and the companies described the payments as compensation for those services. The FTC sued, alleging that the services had little value and that the purpose of the payments was to compensate a would-be competitor for agreeing to delay competition. The district court held that the FTC failed to set forth an antitrust violation, In re Androgel Antitrust Litigation (No. II), 687 F.Supp.2d 1371, 1379 (N.D.Ga.2010), and the Eleventh Circuit affirmed, writing that “absent sham litigation or fraud in obtaining the patent, a reverse payment settlement is immune from antitrust attack so long as its anti-competitive effects fall within the scope of the exclusionary potential of the patent.” FTC v. Watson Pharmaceuticals, Inc., 677 F.3d 1298, 1312 (11th Cir.2012). In a 5-3 opinion, the Supreme Court reversed the Eleventh Circuit, holding that such settlement agreements “can sometimes violate the antitrust laws,” Actavis, 133 S.Ct. at 2227, and that the plaintiff “should have been given the opportunity to prove its antitrust claim.” Id. at 2234. The Court reasoned that referring “simply to what the holder of a valid patent could do does not by itself answer the antitrust question,” because invalidated patents confer no right to exclude competition, and the Paragraph IV certification “put the patent’s validity at issue, as well as its actual preclusive scope.” Id. at 2230-31. It cited legislative history from prior to the enactment of the 2003 amendments — specifically, statements of Senator Hatch and Representative Waxman — that clearly condemns reverse-payment settlements, and went on to conclude that “a reverse payment, where large and unjustified, can bring with it the risk of significant anti-competitive effects.” Id. at 2237. It declined to adopt the “quick look” approach, which would make such settlements presumptively illegal, because “the likelihood of a reverse payment bringing about anti-competitive 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.” Id. The Court instead adopted the “rule of reason” approach, but as for more specific guidance on how to analyze “the basic question — that of the presence of significant unjustified anticompetitive consequences,” the Court “leave[s] to the lower courts the structuring of the present rule-of-reason antitrust litigation.” Id. at 2238. Several district courts have already applied Actavis, with not entirely consistent results. See King Drug Co. of Florence v. Cephalon, Inc., 88 F.Supp.3d 402, No. 2:06-CV-1797, 2015 WL 356913 (E.D.Pa. Jan. 28, 2015); United Food & Commercial Workers Local 1776 & Participating Emp’rs Health & Welfare Fund v. Teikoku Pharma USA, Inc., 74 F.Supp.3d 1052, No. 14-MD-02521-WHO, 2014 WL 6465235 (N.D.Cal. Nov. 17, 2014); In re Effexor XR Antitrust Litig., No. CIV. 11-5479 PGS, 2014 WL 4988410 (D.N.J. Oct. 6, 2014); In re Niaspan Antitrust Litig., 42 F.Supp.3d 735 (E.D.Pa.2014); In re Loestrin 24 Fe Antitrust Litig., 45 F.Supp.3d 180 (D.R.I.2014); In re Lamictal Direct Purchaser Antitrust Litig., 18 F.Supp.3d 560 (D.N.J.2014); In re Nexium (Esomeprazole) Antitrust Litig., 968 F.Supp.2d 367 (D.Mass.2013); In re Lipitor Antitrust Litig., No. 3:12-CV-2389 PGS, 2013 WL 4780496 (D.N.J. Sept. 5, 2013). As of the date of this writing, at least one case applying Actavis has been argued before a federal Court of Appeals — In re Lamictal was argued at the Third Circuit in November 2014 — but none of the circuits has yet issued an opinion interpreting it. There are some questions that arise in the application of Actavis that the district courts may answer in divergent ways — questions like what constitutes a reverse “payment,” and what makes one “large” and “unjustified.” Some of those questions will surely end up in the Courts of Appeals, and perhaps eventually back again at the Supreme Court. As one of the courts above observed, “[w]e are confronting this issue early in a law refinement process that will take some time to shake out.” In re Loestrin 24 Fe Antitrust Litig., 45 F.Supp.3d at 194. 3. Aggrenox The facts of the Aggrenox litigation, as they appear in the pleadings, are virtually identical in essential respects to those of Actavis. Aggrenox is a brand-name prescription medication consisting of a particular combination of dipyridamole and aspirin. In January 2000, Boehringer obtained U.S. Patent No. 6,015,577 on the composition (“the '577 patent”), after having obtained FDA approval in November 1999 for its use to lower the risk of stroke in patients who have already had a stroke or transient ischemic attack. Boehringer listed the patent with the FDA and brought Aggrenox to market, where it has been a commercial success. In January 2007 — ten years before patent '577 is set to expire — Barr filed an Abbreviated New Drug Application seeking approval to market a generic equivalent of Aggrenox, with Paragraph IV certification challenging the '577 patent. Boehringer brought suit in the District of Delaware. At the same time, Barr also intended to introduce a generic of another Boehringer product, Mirapex, and separate litigation on -that issue was pending in the District of Delaware. In August 2008, Boehringer and Barr settled all patent litigation between them, with respect to both Aggrenox and Mirapex. They contemporaneously entered a settlement agreement, an Aggrenox license, a Mirapex license, and a Co-Promotion Agreement. Among other things, Barr agreed to drop its patent challenge and not market generic Ag-grenox until July 2015 (eighteen months prior to the expiration of the patent), and that Duramed (a Barr subsidiary) would use its specialized sales force to educate obstetricians and gynecologists about Ag-grenox. Barr would be compensated based on several factors, including net sales of Aggrenox, regardless of whether its co-promotion generated any additional sales (the FTC estimated that the deal would cost Boehringer over $120 million in royalties). The agreements were announced publicly in a press release. The FTC commenced an inquiry in January 2009, which is apparently ongoing. In August 2009, at least some of the same parties and lawyers in the present litigation brought suit against Boehringer in the Western District of Pennsylvania, alleging that the 2008 settlement was intended to delay entry of generic Mirapex in violation of antitrust law. When the Federal Circuit upheld the validity of the Mirapex patent, the plaintiffs in that case dropped their suit. In 2013, the various suits consolidated here began to be filed, now alleging that the 2008 settlement was intended to delay entry of generic Aggre-nox in violation of antitrust law. B. Federal Antitrust Claims 1. Statute of Limitations The defendants argue in all of their motions to dismiss (most extensively in their motion to dismiss the direct-purchaser complaint, and that discussion is incorporated by reference in the other motions) that the 2013 claims are time-barred. There is no dispute that the statute of limitations for Sherman Act claims is four years from when “the cause of action accrued,” 15 U.S.C. § 15b, and that an antitrust cause of action generally accrues “when a defendant commits an act that injures a plaintiffs business,” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971) (emphasis added), but the parties differently emphasize the commission of the act itself and the consummation of the act in an injury, taking different positions on the applicability of Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263 (2d Cir.1979). The defendants offer two possibilities: the claims accrued in August 2008, when the Aggrenox settlement was reached and publicly announced; or in August 2009, when the FDA approved Barr’s Abbreviated New Drug Application for a generic equivalent to Aggrenox. If the defendants committed some discrete anticompetitive act, then surely — as the complaints allege — it was the 2008 agreement. If injury was only speculative at that date, because Barr did not yet have approval to begin production of the generic, then surely it would become real in August 2009 when that approval was obtained. Both dates put the November 2013 filing of the first direct-purchaser complaint outside of the four-year window. The defendants also argue that the end of the automatic 30-month stay of FDA approval of a generic that was triggered by the filing of Boehringer’s infringement suit — though falling just within four years of the filing of the first complaint — should not be taken as the accrual date. They argue that under the plaintiffs’ theory of the case (at least as the defendants understand it), the invalidity of Boehringer’s patent would have been determined in court (and the avoidance of this inevitability was the motivation for the settlement), and thus the stay would have ended prior to the 30-month period. The plaintiffs cannot be permitted, the defendants insist, to argue for an earlier date when arguing that the settlement caused the specific harm of delayed entry of a generic, but to argue for a later date for purposes of the statute of limitations. The plaintiffs, however, believe the defendants are attempting to dodge Ber-key Photo, which distinguishes injured rivals from injured purchasers in antitrust actions. “Although the business of a monopolist’s rival may be injured at the time the anticompetitive conduct occurs,” the Second Circuit reasoned, “a purchaser, by contrast, is not harmed until the monopolist actually exercises its illicit power to extract an excessive price.... So long as a monopolist continues to use the power it has gained illicitly to overcharge its customers, it has no claim on the repose that a statute of limitations is intended to provide .... The purchaser’s cause of action, therefore, accrues only on the date damages are suffered.... ” 603 F.2d at 295 (internal quotation marks omitted). The defendants argue that Berkey Photo does not apply, because its analysis relied on circumstances in which plaintiffs might not yet have reason to believe they were injured within the limitations period. The case as they see it therefore stands for a narrow “speculative damages” exception, and more expansive language is mere dicta. Moreover, the defendants insist, this case and others that the plaintiffs cite rely on ongoing instances of discrete anticom-petitive conduct within the limitations period, not merely carrying out the terms of an earlier agreement. They argue that the Second Circuit has distinguished between the new and independent acts needed to maintain a conspiracy and inertial consequences flowing from a discrete act. The defendants rely most heavily on United States v. Grimm, 738 F.3d 498 (2d Cir.2013), a criminal case dismissing a conspiracy-to-eommit-wire-fraud indictment on grounds of a lapsed limitations period. The defendants also cite various other cases in addition to Grimm for the proposition that courts in the Second Circuit very strongly disfavor the “continuing violation” doctrine, and for the narrowness of the exception that the doctrine purportedly represents. See, e.g., Pressley v. City of N.Y., 2013 WL 145747 (E.D.N.Y. Jan. 14, 2013); Trinidad v. N.Y. City Dept. of Corr., 423 F.Supp.2d 151 (S.D.N.Y.2006); In re Ciprofloxacin Hydrochloride Antitrust Litig., 261 F.Supp.2d 188 (E.D.N.Y.2003); Schultz v. Texaco Inc., 127 F.Supp.2d 443 (S.D.N.Y.2001). But the cited decisions are either not antitrust cases, or they do not examine the issue pertinent here of purchasers alleging ongoing overcharges. None of them abrogates or otherwise casts doubt on the authority or reasoning of Berkey Photo, and none of them so squarely meets the allegations in this case as Berkey Photo does. The defendants are correct that the Berkey Photo Court discusses speculative damages and the potential of anticompeti-tive conduct to harm even businesses that do not yet exist at the time of the conduct. It is inaccurate, however, to suggest that the court used any such limiting language in its holding, or that the plaintiffs have misplaced reliance on its dicta. On the contrary, cutting through any dispute about what is and is not mere dictum, the court expressly flags its holding: “We hold, therefore, that a purchaser suing a monopolist for overcharges paid within the previous four years may satisfy the conduct prerequisite to recovery by pointing to anticompetitive actions taken before the limitations period.” 603 F.2d at 296. That is precisely the scenario that the plaintiffs allege. They allege, in fact, not just overcharges paid within the previous four years, but overcharges that are ongoing. Even if, as defendants argue, the prerequisite anticompetitive conduct occurred wholly outside of the four-year limitations period, the plaintiffs’ claims still fall clearly and squarely under the holding of Berkey Photo. Courts in other districts and circuits have used the same reasoning applied in Berkey Photo — a purchaser suing a monopolist for overcharges is injured anew by each overcharge — and have come to the same result. See, e.g., In re Niaspan Antitrust Litig., 42 F.Supp.3d 735, 746-47 (E.D.Pa.2014) (“Every court to have considered this issue in the pay-for-delay context has held that a new cause of action accrues to purchasers upon each overpriced sale of the drug.”) (citing In re K-Dur Antitrust Litig., 338 F.Supp.2d 517, 549 (D.N.J.2004) (“Plaintiffs’ claims are not barred by the statute of limitations to the extent that they bought and overpaid for K-Dur within the applicable time limitations.”); In re Buspirone Patent Litig., 185 F.Supp.2d 363, 378 (S.D.N.Y.2002) (“[I]f a party commits an initial unlawful act that allows it to maintain market control and overcharge purchasers for a period longer than four years, purchasers maintain a right of action for any overcharges paid within the four years prior to their filings.”); In re Skelaxin (Metaxalone) Antitrust Litig., No. 12-md-2343, 2013 WL 2181185 (E.D.Tenn. May 20, 2013) (holding that the plaintiffs’ claims were timely because they were “overcharged for metaxalone well into the limitations period”)). I conclude that the federal antitrust claims are timely for all overcharges alleged to have been incurred within the four years preceding the filing of the claims. 2. Antitrust Injury Under Actavis The defendants argue that the plaintiffs do not plausibly allege antitrust injury, because any injury at all is predicated upon the assumption that Barr would have prevailed in its patent challenge, and because the plaintiffs make only the conclusory allegation that the patent was weak. The plaintiffs, they say, simply make no allegation meeting the plausibility standard on a motion to dismiss that the '577 patent would have been found invalid, or that a generic would have been introduced “at-risk,” if only the defendants had not entered into the challenged settlement agreement. There is thus no plausible allegation of actual injury, the argument goes, because there is no plausible allegation of actual delay of the entry of a generic. That argument, however logically compelling it might be in isolation, fails to engage seriously with the Supreme Court’s reasoning in Actavis, which poses an insurmountable obstaele’to it. The essential problem with the divergent rules for the treatment, of reverse-payment patent-litigation settlements before Actavis is that they made (likely unjustifiable) presumptions about the validity of the underlying patents, which was the very issue disputed in the underlying patent litigation. Under the old “scope of the patent” test, which was rejected in Acta-vis, any settlement less restrictive than the patent was immune from antitrust scrutiny. But “to refer ... simply to what the holder of a valid patent could do does not by itself answer the antitrust question,” the Court held, because the patent “may or may not be valid, and may or may not be infringed. A valid patent excludes all except its owner from the use of the protected process or product.... But an invalidated patent carries with it no such right.” Actavis, 133 S.Ct. at 2230-31 (internal quotations and citation omitted). The patent’s validity was precisely the disputed issue in the litigation, and the settlement ended that litigation. Taking the patent’s exclusionary scope as the baseline does indeed make procompetitive any settlement that reflects any lesser exclusion; but that baseline presumes the validity of the patent. The opposite presumption— taking the invalidity of the patent as the baseline — would make any period of excluded competition that is agreed to in a settlement, no matter how much shorter than the patent’s period of exclusion, necessarily anticompetitive. Both presumptions are impermissible. The defendants, by expecting the plaintiffs to plead with specificity reasons to infer that the '577 patent would ultimately have been invalidated, appear to presume that the Supreme Court in Actavis favored a rule that required litigating the patent’s merits, at least in some abbreviated fashion, in order to determine whether a settlement violates antitrust law. That would be a logical (however impractical) way to avoid presuming either the patent’s validity or invalidity, but the Supreme Court expressly disclaimed it: [I]t is normally not necessary to litigate patent validity to answer the antitrust question_ An unexplained large reverse payment itself would normally suggest that the patentee has serious doubts about the patent’s survival. And that fact, in turn, suggests that the payment’s objective is to maintain supra-competitive prices to be shared among the patentee and the challenger rather than face what might have been a competitive market — the very anticompeti-tive consequence that underlies the claim of antitrust unlawfulness. Id. at 2236. The “unexplained large reverse payment*’ serves as a proxy for the weakness of the patent, which thus need not be proved (or pleaded) directly. Moreover, the Court identified the pertinent “anticompetitive consequence,” which does not appear to depend on the conclusive invalidity of the patent. The antecedent of the appositive clause identifying the anti-competitive consequence contains a telling subjunctive: “to maintain supracompeti-tive prices to be shared among the paten-tee and the challenger rather than face what might have been a competitive market” (emphasis added). The Court was still clearer a few sentences later: The owner of a particularly valuable patent might contend, of course, that even a small risk of invalidity justifies a large payment. But, be that as it may, the payment (if otherwise unexplained) likely seeks to prevent the risk of competition. And, as we have said, that consequence constitutes the relevant anticom-petitive harm. In a word, the size of the unexplained reverse payment can provide a workable surrogate for a patent’s weakness, all without forcing a court to conduct a detailed exploration of the validity of the patent itself. Id. at 2236-37 (emphasis added). The anticompetitive harm is not that the patent surely would have been invalidated if not for the settlement, and that a generic therefore surely would have entered the market sooner; if that were the anticom-petitive harm, a determination of a patent settlement’s lawfulness under antitrust law would require the very same patent litigation that the settlement avoided. The anticompetitive harm, under Actavis, is that the reverse-payment settlement “seeks to prevent the risk of competition” (emphasis added). The plaintiffs thus need not plead (or prove) the weakness of the '577 patent, because the patent’s ultimate validity is not at issue. • Rather, they must plead facts sufficient to infer (and they must ultimately prove, within the rule-of-reason framework) that a large and otherwise unjustified reverse-payment was made as part of the settlement in order to shore up some perceived risk of the '577 patent’s invalidity. The rule of Actavis might seem unusual or counterintuitive given the typical settlement context. The value of a lawsuit is traditionally estimated as the expected value of judgment multiplied by the probability of liability, less litigation costs. The probabilities are of course always rough estimates, but the parties evaluate the fa-vorability of potential settlements by their respective estimation of risk and the allocation of that value between them. In the Hatch-Waxman context, however, where litigation was provoked by Paragraph IV certification (and production of allegedly infringing product need not have begun), there may be no actual damages, and the adverse outcome for the patent-holder is measured not by the size of a potential judgment but by the forgone monopoly profits in the event of patent invalidation. Any settlement that takes the risk of patent invalidation into account will tacitly reflect the value of continuing the patent monopoly. Of course it will generally be in the interest of both patent-holder and patent-challenger to share the monopoly profits rather than compete: Indeed, there are indications that paten-tees sometimes pay a generic challenger a sum even larger than what the generic would gain in profits if it won the paragraph IV litigation and entered the market. The rationale behind a payment of this size cannot in every case be supported by traditional settlement considerations. The payment may instead provide strong evidence that the paten-tee 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. Id. at 2235 (citation omitted). In such cases, the ex ante probability of patent invalidation will factor only into the allocation of monopoly profits between patent-holder and patent-challenger, while the consumer bears the cost of monopoly prices irrespective of the patent’s strength or weakness. Of course, the actual expected cost of litigation for the patent-holder necessarily includes the risk of invalidation and forgone monopoly profits, whether or not that is a permissible settlement consideration. It is thus no surprise if pre-Actams settlements in the Hatch-Waxman context frequently included large payments flowing from patent-holders to patent-challengers (that is, large “reverse” payments), and we might therefore expect Actavis to discourage many patent settlements, especially where the patent in question is very valuable. That may impose a cost on the judicial system, which, as the Supreme Court acknowledged in Actavis, prefers “a general legal policy favoring the settlement of disputes,” id. at 2234, but it is consistent with what the Court observed were the purposes of the Hatch-Waxman Act and Paragraph IV certification. Id. (observing “the general procompetitive thrust of the statute,” and “its specific provisions facilitating challenges to a patent’s validity”). In sum, though the defendants are correct that the several complaints in the present case plead relatively bare allegations of the '577 patent’s vulnerability and the hypothetical earlier entry of a generic if not for the settlement agreement, the sparsity of those allegations does not fatally undermine the claims of antitrust injury under Actavis. The salient question is not whether the fully-litigated patent would ultimately be found valid or invalid — that may never be known — but whether the settlement included a large and unjustified reverse payment leading to the inference of profit-sharing to avoid the risk of competition. 3. “Large” and “Unjustified” Reverse “Payment” Under Actavis In Actavis, a brand-name manufacturer and a generic manufacturer settled a lawsuit provoked by Paragraph IV certification, and the settlement terms required the generic manufacturer to drop the patent challenge and provide promotional services for the brand-name drug. In exchange, the generic manufacturer received large payments and an entry date for the competing generic that was not immediate but still earlier than the expiration of the patent. The subsequent antitrust complaint alleged that the services were mere pretext for the payment, which was in truth a payment to delay competition. Nearly identical allegations are presented here. The Court in Actavis held that large and unjustified reverse payments bring with them the risk of significant anticompetitive effects, that the plaintiffs should have been allowed to present their antitrust case, and that rule-of-reason analysis should be applied, but it did not discuss in any detail whether or why the reverse payment alleged in that case was “large” or “unjustified.” District courts applying Actavis have thus had relatively little guidance on the question of what constitutes a “large” and “unjustified” reverse payment, and have diverged even on the issue of what constitutes “payment.” The defendants here dispute the plaintiffs’ characterization of their settlement agreement on all three grounds. The disputed “agreement” was in fact a complicated transaction involving a series of agreements settling separate litigation over two drug patents, and the defendants argue that nothing in any of it constitutes a reverse payment, but only compensation for services; and that even if some part of it does constitute a reverse payment, it is neither large nor unjustified. The defendants emphasize that every settlement necessarily involves consideration on both sides, and that it therefore cannot be the case that a “reverse payment” of the sort contemplated in Ac-tavis is present merely because an alleged patent infringer may be said to have received consideration as part of a settlement. That is doubtless correct — even a promise to stop litigating has value and may constitute consideration in a settlement agreement — but the defendants go altogether too far the other way in their attempt to read a maximally restrictive sense of “payment” into the Actavis decision. They make much of the fact that Actavis contains repeated examples and references to payments of money, and not to payments of some other form of consideration, and they dispute whether “payment” under Actavis comprises transfers of value in any form other than cash. As of the date of this writing, two courts have agreed with that view, see In re 24 Loestrin Fe Antitrust Litig., 45 F.Supp.3d 180 (D.R.I.2014); In re Lamictal Direct Purchaser Antitrust Litig., 18 F.Supp.3d 560 (D.N.J.2014), though one of them did so with “significant reservations” and called that conclusion “vexing.” In re Loestrin, 45 F.Supp.3d at 192-93. A majority of courts to have examined the issue take the opposite position, that “payment” is not limited to cash transfers. See, e.g., United Food & Commercial Workers Local 1776 & Participating Emp’rs Health & Welfare Fund v. Teikoku Pharma USA, Inc., 74 F.Supp.3d 1052, No. 14-MD-02521-WHO, 2014 WL 6465235 (N.D.Cal. Nov. 17, 2014); In re Effexor XR Antitrust Litig., No. CIV. 11-5479 PGS, 2014 WL 4988410 (D.N.J. Oct. 6, 2014); In re Niaspan Antitrust Litig., 42 F.Supp.3d 735 (E.D.Pa.2014); In re Nexium (Esomeprazole) Antitrust Litig., 968 F.Supp.2d 367 (D.Mass. 2013). I must agree with the latter group. Black’s Law Dictionary defines “payment” as the “[p]erformance of an obligation by the delivery of money or some other valuable thing accepted in partial or full discharge of the obligation.” (10th ed.2014) (emphasis added). The Oxford English Dictionary defines it as a “sum of money (or equivalent) paid or payable, esp. in return for goods or services or in discharge of a debt.” (3d ed.2005) (emphasis added). Those definitions quite sensibly recognize the substitutability of value, because the distinction between transfers of money and transfers of things that are worth money is, in the words of the Acta-vis dissent, “a distinction without a difference.” Actavis, 133 S.Ct. at 2243 (Roberts, C.J., dissenting). Indeed, if antitrust scrutiny can be avoided simply by making one’s large and unjustifiable reverse-payment settlement in gold bullion rather than dollars, then Actavis stands for nothing but an arbitrary restriction on the form such payments can take. To read the decision that way is to cabin its reasoning to the • point of meaninglessness. I must conclude that large and unjustified reverse payments that “can bring with [them] the risk of significant anticompeti-tive effects,” id. at 2237 (majority opinion), can bring those effects regardless of the particular form the transfer of value takes and thus are not limited to cash payments. 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. Such a settlement, under Actavis, is not ipso facto unlawful: the parties to the settlement might be able to explain the apparent “missing” value for the patent-holder in a procompetitive way — -and they will have an opportunity to do so under the rule-of-reason framework — in which case the reverse payment may turn out to be justified, or to be entirely illusory. But if otherwise unexplained, it “likely seeks to prevent the risk of competition. And ... that consequence constitutes the relevant anticompetitive harm.” Id. at 2236. Under Actavis, “the likelihood of a reverse payment bringing about anti-competitive 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.” Id. at 2237. The plaintiffs here allege that the reverse payment was quite large, including a $4 million upfront cash payment and approximately $120 million in guaranteed royalties over time even in the absence of co-promotion efforts — and that being in addition to the up-to-$2.5 million per year of payments for those co-promotion efforts, which the plaintiffs also suggest exceeds the value of the services. The defendants argue that even those sums are small in relation to the value of the patent. That relation, by the logic of Actavis, may suggest confidence in the patent, but it does not mean that the alleged reverse payment is not “large.” On the contrary, as the Supreme Court suggested in Acta-vis, id. at 2236-37, a patent-holder who has a high degree of confidence in a patent’s strength may nevertheless be willing to share some portion of the monopoly profits in order to avoid even a small risk of invalidation if the patent is especially valuable, and even a small portion of the profits on an especially valuable patent might indeed be quite large in absolute terms. I agree with the defendants that payments smaller than avoided litigation costs are presumptively not large and unexplained under Actavis, and represent a de facto safe harbor, and also that payments exceeding avoided litigation costs are not automatically deemed unlawful for that reason alone. Even if the payments exceed avoided litigation costs, the Actavis factors — the size of the payments, their scale in relation to litigation costs, their independence from other services for which they might be fair consideration, and. any other convincing justification— still matter. But I cannot conclude that the size of the reverse payments in relation to the anticipated value of the patent is dispositive of the lawfulness of the agreement. Large reverse payments that are not particularly large in relation to the value of the patent may show confidence in the patent, but if they represent payment to avoid the risk of invalidation, then they still run afoul of Actavis. The plaintiffs allege that the total payment is far greater than the fair value of the services falling under the Co-Promotion Agreement, and therefore constitutes a large and unjustifiable reverse payment, which they allege is especially clear since payment is guaranteed even without the generation of additional sales. They also allege that Boehringer agreed not to launch its own “authorized generic” during Barr’s 180-day exclusivity period under the Hatch-Waxman Act, which further enlarged the reverse payment by constituting an additional unexplained transfer of value to Barr. The defendants dispute those allegations, and the sufficiency of the pleading, with several arguments: They argue that the Co-Promotion Agreement, as part of a complex transaction that settled litigation over two drugs, was somehow separate from the Aggrenox settlement, and that the plaintiffs have failed to sufficiently plead that it was made as consideration for that settlement (or they cannot so plead) because they argued in prior litigation that it was made as consideration for delaying generic entry of the other drug. They argue that the plaintiffs fail to plead with sufficient specificity the fair value of the services, the excess of the payments over that value, or in some other way the total value of the alleged reverse payment. And they argue that any agreement not to introduce an authorized generic should not be considered part of a reverse payment because exclusive licenses are authorized by the Patent Act and are the kind of traditional form of settlement that Adams permits, or because they only result in “payment” in the form of affirmative sales, or because they are otherwise procompetitive insofar as they represent an increase in competition compared to what competition otherwise would have been under the patent. I find none of those arguments persuasive. First, and quite notably, the defendants do not agree among themselves whether the challenged settlement agreement actually does prevent Boehringer from introducing an authorized generic: by Boeh-ringer’s interpretation, it does not; but by Barr’s reckoning it does. That disagreement is consonant with the plaintiffs’ theory: Barr (the alleged infringer, and would-be generic manufacturer) sees a “no-authorized generic” agreement as a thing of value it received in the settlement and wishes to preserve it in this litigation, while Boehringer (the patent-holder and brand-name manufacturer) sees such an agreement as a cost it prefers not to incur and would happily disclaim. I need not determine now who is correct by ruling on the construction of the agreement, but the plaintiffs allege that there is such a provision and that it is very valuable, and at least on the latter point the defendants clearly agree. The defendants are correct that the plaintiffs have not attempted to assign dollar values with significant precision or very obvious methodological justification to the various provisions of the settlement, and that is among the stronger of the defendants’ arguments. Some other courts interpreting Adavis, while holding that reverse “payments” are not limited to cash transfers, have observed the importance of the court’s ability to calculate the value of any nonmonetary payments or have held that pleading an estimate of the total monetary value and a reliable foundation for that value .are necessary to establish the plausibility required by Rule 12(b)(6). See, e.g., In re Effexor XR Antitrust Litig., No. 3:11-CV-5479 PGS, 2014 WL 4988410 (D.N.J. Oct. 6, 2014); In re Lipitor Antitrust Litig., 46 F.Supp.3d 523 (D.N.J.2014). While I share the concerns expressed by those courts, it is also clear that 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, and that these issues are sufficiently factual to require discovery. I cannot conclude simply from the absence of precise figures that the pleadings represent formulaic recitations of elements and allegations that fail to rise above the speculative; on the contrary, the complaints make specific allegations about the terms of the settlement and their relative value that are plausible on their face. Whether the plaintiffs can substantiate those allegations may be an issue for summary judgment or trial, but for purposes of the motions to dismiss, I must accept the allegations as true and draw all reasonable inferences in the plaintiffs’ favor. While doing that, I cannot conclude that the plaintiffs' fail to sufficiently plead a large and unjustified reverse payment. Nor are the allegations of a large and unjustified reverse payment undermined by the permissibility of exclusive licensing under the Patent Act or in settlements generally. The defendants are surely correct that patent holders may legally grant exclusive licenses and that the particular restraint on competition such agreements represent is an exception to antitrust prohibition and expressly permissible by statute. That is not disputed. But such licenses can be worth money, and granting them can thus be the equivalent of transferring money. 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 insteád of cash, irrespective of whether the grant of an exclusive license would otherwise be valid. The statutory authority to grant exclusive licenses no more immunizes reverse-payment settlements that include them from antitrust scrutiny under Acta-vis than the statutory authority to use cash as legal tender immunizes reverse-payment settlements made in cash from such scrutiny. The issue is not whether the form of the payment was legal, but whether the purpose of the payment was legal. The plaintiffs do not appear to allege that “no-authorized generic” agreements are per se unlawful, nor that any individual feature of the settlement agreement would have necessarily constituted an antitrust violation as part of some other agreement. Rather, they allege that Boehringer gave much more than it got in the settlement agreement; and under Ac-tavis, that can constitute an antitrust violation if it did so in order to avoid the risk of patent invalidation. It may also be true that granting an exclusive licensing agreement is procom-petitive relative to not granting it, but the anticompetitive harm described in Actavis is not measured by the exclusionary scope of the patent — that test was explicitly rejected. The question is whether a large and unjustifiable reverse payment was made in order to avoid the risk of patent invalidation. If a settlement that grants an exclusive license violates the rule of Actavis, it is not saved by comparison to the exclusionary scope of the unlicensed patent, or by the licensing arrangement being more competitive than a settlement agreement that lacked one. Rule-of-reason analysis proceeds in three steps: First, the plaintiff bears the initial burden of showing that the defendant’s conduct had an actual adverse effect on competition as a whole in the relevant market. If plaintiff satisfies this burden, the burden then shifts to defendant to offer evidence that its conduct had procompetitive effects. If defendant is able to offer such proof, the burden shifts back to plaintiff, who must prove that any legitimate competitive effects could have been achieved through less restrictive alternatives. Ark. Carpenters Health & Welfare Fund v. Bayer AG, 604 F.3d 98, 104 (2d Cir.2010) (internal quotations and citations omitted). In the present context of a motion to dismiss, the plaintiffs need only allege plausible facts that, if true, raise a reasonable expectation that discovery will reveal sufficient evidence to prove their prima facie case. Under the treatment of reverse-payment settlements in Actavis, they have done so. 4. Monopoly Power The defendants argue that the plaintiffs fail to state a claim because they do not sufficiently define a relevant product market, and the single-product market of Ag-grenox alone (or of Aggrenox and potential generics) is overly narrow. Because Ag-grenox is prescribed to reduce the risk of stroke, they suggest Plavix — an FDA-approved antiplatelet therapy — as an example of a pharmaceutical that shares the market with Aggrenox. The presence of that drug, they argue, means that the defendants could maintain a monopoly on Aggrenox alone without having monopoly power within a market sufficient to be governed by the Sherman Act. The plaintiffs contend that a market of Aggrenox and Aggrenox generics is sufficiently defined, and moreover that they need not define a market, because they plead actual detrimental effects, for which market power is merely a surrogate. Monopoly power is a necessary element of Sherman Act claims, United States v. Grinnell Corp., 384 U.S. 563, 570, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966), and the Supreme court has defined that power as “the power to control prices or exclude competition.” United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 391, 76 S.Ct. 994, 100 L.Ed. 1264 (1956). The plaintiffs are correct, however, that when direct evidence is available that a party profitably charges supracompetitive prices, the existence of market power can be established from that fact alone. Tops Markets, Inc. v. Quality Markets, Inc., 142 F.3d 90, 97-98 (2d Cir.1998) (“Monopoly power, also referred to as market power, is the power to control prices or exclude competition. It may be proven directly by evidence of the control of prices or the exclusion of competition or it may be inferred from one firm’s large percentage share of the relevant market.”). The market for prescription pharmaceuticals is an unusual one, in part because consumers are typically insulated at least to some degree from both cost (which is often largely covered by an insurance plan) and choice (which is at least limited and more likely substantially directed by the prescribing physician), so market features such as cost-sensitivity and elasticity of demand might therefore defy reasonable expectations. It is nevertheless true in antitrust analysis that “as a general rule, the process of defining the relevant product market requires consideration of cross-elasticity of demand,” Hayden Pub. Co. v. Cox Broad. Corp., 730 F.2d 64, 71 (2d Cir.1984), because the boundaries of a particular product market are determined by “the reasonable interchangeability of use or the cross-elasticity of demand between the product itself and substitutes for it.” Chapman v. New York State Div. for Youth, 546 F.3d 230, 237 (2d Cir.2008). The plaintiffs allege that there is no such cross-elasticity of demand between Aggrenox and other drugs sufficient to define any broader antitrust market, and that because Boehringer is able to charge supracompetitive prices for Aggre-nox without losing sales, it does not share a market defined by interchangeability. That is clearly a fact-intensive inquiry, and for that reason “courts hesitate to grant motions to dismiss for failure to plead a relevant product market.” Todd v. Exxon Corp., 275 F.3d 191, 199-200 (2d Cir.2001); see also Hayden Pub. Co. v. Cox Broad. Corp., 730 F.2d 64, 70 n. 8 (2d Cir.1984) (“It frequently has been observed that a pronouncement as to market definition is not one of law, but of fact.”) (quotation and citation omitted). The Supreme Court has been clear that market definitions can sometimes only be determined “after a factual inquiry into the commercial realities faced by consumers,” Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 482, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (quotation omitted), and that “in some instances one brand of a product can constitute a separate market.” Id. Perhaps because of the peculiar features of pharmaceutical markets, the Second Circuit has even held that the relevant market can sometimes be limited to the generic of a particular drug, excluding the chemically-identical brand-name version. Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 496-500 (2d Cir.2004). The plaintiffs’ allegations that Boehringer is able to charge supracompet-itive prices for Aggrenox in a market with no cross-elasticity of demand with other drugs are highly plausible. If that were not the case, it is not clear why Boehringer would have sued to prevent entry of Barr’s generic. The defendants are free to argue otherwise on an eventual summary judgment motion or at trial, but it is premature on a motion to dismiss for the court to make a more probing factual inquiry than that, and the defendants cannot persuasively argue that the complaints should be dismissed for failure to plead monopoly power within a sufficiently defined market. 5. Attempt and Conspiracy Attempt and conspiracy to monopolize under the Sherman Act require specific intent to monopolize, and the defendants argue that the plaintiffs’ pleading on intent amounts to mere recitation of the element. The facts as alleged, the defendants argue, merely reflect an effort to enforce a valid patent and later to settle the litigation, which judicial policy favors; and even if the settlement agreement is unlawful under Actavis, it was lawful under the Second Circuit “scope of the patent” test that was controlling at the time, so there can have been no unlawful intent. The alleged anticompetitive conduct is described at length above, and I do not recite it again here; but the plaintiffs do plead an anticompetitive scheme in significant detail, as already discussed, and they allege that the scheme was intentional. Moreover, it is clearly the law in the Second Circuit that anticompetitive intent can be inferred from anticompetitive conduct. Volvo North America Corp. v. Men’s Int’l. Prof'l Tennis Council, 857 F.2d 55, 74 (2d Cir.1988). The defendants’ argument that unlawful intent is precluded by the lawfulness of the agreement under the now-abrogated test used in the Second Circuit at the time the agreement was made is compelling as an argument from basic fairness; but the defendants offer no support for the suggestion that the necessary intent under federal law is intent to monopolize unlawfully, rather than merely intent to monopolize (perhaps with a good-faith belief that patent law or some other antitrust exception provided safety from liability). If the settlement included a large and unjustified reverse payment that was made in order to avoid the risk of patent invalidation, then antitrust liability may attach under Actavis; and that particular anticompetitive harm is necessarily intentional (even if intent is proved by inference). The defendants offer no authority to suggest that that analysis changes because they believed they were acting lawfully at the time under the Second Circuit’s rule. C. State-Law Claims This case is rendered much more complicated by the rules of Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S.Ct. 2061, 52 L.Ed.2d 707 (1977), and California v. ARC America Corp., 490 U.S. 93, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989). In th