Full opinion text
REENA RAGGI, Circuit Judge: Plaintiffs Freedom Holdings, Inc., and International Tobacco Partners, Ltd., are cigarette importers. They filed this putative class action in the United States District Court for the Southern District of New York (Alvin K. Hellerstein, Judge) to enjoin the enforcement of New York statutes enacted in furtherance of a 1998 Master Settlement Agreement (“MSA”) between a number of tobacco companies and various government entities, including New York State. Plaintiffs contend that the laws at issue, N.Y. Pub. Health Law §§ 1399-nn — 1399-pp (the “Escrow Statute”), and N.Y. Tax Law §§ 480-b, 481, and 1846 (collectively, the “Contraband Statute”), impermissibly (1) restrain trade in violation of section 1 of the Sherman Act, 15 U.S.C. § 1; and (2) regulate out-of-state commerce in violation of the Commerce Clause, U.S. Const, art. I, § 8, cl. 3. Plaintiffs now appeal from a judgment entered in favor of defendants on January 14, 2009, after a bench trial. For the reasons stated in this opinion, we affirm. I. Background Numerous prior opinions of this court and the district court detail the extensive background of this case. See Freedom Holdings, Inc. v. Spitzer (“Freedom Holdings I ”), 357 F.3d 205 (2d Cir.2004); Freedom Holdings, Inc. v. Spitzer (“Freedom Holdings II”), 363 F.3d 149 (2d Cir.2004); Freedom Holdings, Inc. v. Spitzer (“Freedom Holdings III”), 447 F.Supp.2d 230 (S.D.N.Y.2004); Freedom Holdings, Inc. v. Spitzer (“Freedom Holdings IV”), No. 02 Civ. 2939, 2004 WL 2251668 (S.D.N.Y. Oct. 6, 2004); Freedom Holdings, Inc. v. Spitzer (“Freedom Holdings V”), 408 F.3d 112, 115 (2d Cir.2005); Freedom Holdings, Inc. v. Cuomo (“Freedom Holdings VI ”), 592 F.Supp.2d 684 (S.D.N.Y.2009). We assume familiarity with these opinions and recite only the facts relevant to the decision reached today. A. The Master Settlement Agreement In November 1998, the nation’s four dominant cigarette manufacturers- — -Philip Morris, Lorillard Tobacco, Brown & Williamson, and R.J. Reynolds — settled pending litigation with forty-six states, the District of Columbia, and five United States territories (collectively, “the states”) by entering into the MSA. In return for releases from liability, these manufacturers agreed to make substantial annual payments to compensate the states for health care expenses incurred in the past and expected to be incurred in the future as a result of their populations’ smoking-related ailments. New York’s approval of the MSA is reflected in State v. Philip Morris, Inc., 179 Misc.2d 435, 686 N.Y.S.2d 564 (1998), aff'd, 263 A.D.2d 400, 693 N.Y.S.2d 36 (1st Dep’t 1999). 1. The MSA’s Treatment of Cigarette Manufacturers The MSA divides cigarette manufacturers into several groups. The first group consists of the four dominant manufacturers who initially executed the MSA. They are referred to as “original participating manufacturers,” or “OPMs.” The second group consists of more than fifty smaller manufacturers who joined the MSA after its initial execution. They are referred to as “subsequent participating manufacturers,” or “SPMs.” The SPMs are divided into two sub-groups: “grandfathered SPMs,” who joined the MSA within sixty days of the initial November 1998 execution date; and “non-grandfathered SPMs,” who joined the MSA thereafter. A third group consists of manufacturers who have not joined the MSA. They are referred to as “non-participating manufacturers,” or “NPMs.” An NPM may become a non-grandfathered SPM at any time by signing the MSA and making prescribed payments. 2. Payment Obligations The MSA specifies a total base payment to be made by all OPMs to the states each year. In 2009, the required base payment was $9 billion. The MSA allocates the annual base payment obligation among OPMs according to their relative market share of the total number of individual cigarettes shipped by the OPMs to the fifty states, the District of Columbia, and Puerto Rico during the preceding calendar year. The MSA then awards the base payment to the states based on prescribed allocable shares, which for New York is 12.76%. SPMs make annual payments approximating payments made by OPMs. The advantage conferred on grandfathered SPMs for quickly joining in the MSA is that they are exempted from payments on either their 1998 market share, or 125% of their 1997 market share, whichever is greater. Thus, grandfathered SPMs pay an amount approximating the OPM payment only for each cigarette manufactured above the grandfathered threshold. While the average per-cigarette cost of complying with the MSA is roughly equivalent among OPMs and SPMs above grandfathered thresholds, this court and the district court have observed that the SPM payment formula may, as an arithmetical matter, disproportionately increase marginal payment obligations when SPMs gain market share from OPMs. See Freedom Holdings II, 363 F.3d at 153; see also Freedom Holdings VI, 592 F.Supp.2d at 698 n. 15; Freedom Holdings III, 447 F.Supp.2d at 258. In this case, we need not consider whether this formula raises antitrust concerns because plaintiffs are NPMs, not SPMs. See infra at [51-52 & n. 14]. 3. Adjustments to Payment Obligations The MSA also provides for various adjustments to participating manufacturers’ payment obligations. First, an “inflation adjustment” increases payment obligations by a minimum of 3% annually. Second, a “volume adjustment” reduces the required base payment if there is an overall decline in the volume of cigarettes sold nationwide. Third, if participating manufacturers lose market share relative to NPMs, an “NPM adjustment” reduces the required base payment by triple the amount of market share lost. See MSA § IX(d)(l)(A). B. The Challenged Statutes 1. The Escrow Statute Under the MSA, a decline in the volume of sales by participating members necessarily decreases the payments received by the states. To the extent the decline is attributable to increased sales by NPMs, states can both make up for the lost MSA payments and avoid the NPM adjustment by enacting and diligently enforcing escrow statutes. See MSA § IX(d)(2)(B). The MSA contemplates that an escrow statute will “effectively and fully neutralize[ ] the cost disadvantages that the Participating Manufacturers experience vis-avis Non-Participating Manufacturers within such Settling State as a result of the provisions of [the MSA].” Id. § IX(d)(2)(E). The settling states have, in fact, all enacted escrow statutes. The operative section of the New York Escrow Statute challenged in this case is codified at New York Public Health Law § 1399-pp. It requires each cigarette manufacturer either (1) to join the MSA as a participating manufacturer, see id. § 1399-pp(l); or (2) to make annual payments into a state escrow fund, see id. § 1399-pp(2). The statute specifies the amount of these annual escrow payments, which are adjusted for inflation. See id. at § 1399-pp(2)(a). Escrow funds are released if needed to pay certain judgments, to the extent an NPM paid more into the escrow fund than it would have paid as an SPM, or otherwise after twenty-five years. See id. § 1399-pp(2)(b). As originally drafted, state escrow statutes, including New York’s, also contained allocable share release provisions, which allowed an NPM to recoup escrow payments to the extent the NPM paid more into the escrow fund than a state’s allocable share of MSA payments. This provided an incentive for NPMs to concentrate their sales in a single state or small group of states to minimize their escrow costs. Thus, an NPM that sold 100% of its cigarettes in New York could recoup 87.24% of its escrow payments because New York’s allocable share of MSA payments is 12.76%. Meanwhile an NPM that sold the same number of cigarettes nationwide could recoup none of its escrow payments. To avoid this outcome, in 2003, New York, like other settling states, amended its Escrow Statute to permit NPMs to obtain a release of escrow payments only to the extent they exceeded the per-cigarette payments the NPMs would have made as participants in the MSA. See N.Y. Pub. Health Law § 1399 — pp(2)(b)(ii). 2. The Contraband Statute Between 1998 and 2002, MSA participants saw their market share of cigarette sales decline while NPMs’ share rose. Attributing this situation, at least in part, to the failure of certain NPMs to comply with escrow statutes, a number of states enacted “contraband statutes.” See Freedom Holdings I, 357 F.3d at 213 (quoting Governor George Pataki’s statement that New York’s Contraband Statute would “bolster the State’s ability to diligently enforce” the Escrow Statute and, thus, “help protect the State from further [NPM] adjustments” (internal quotation marks omitted) (alteration in original)). New York’s Contraband Statute, codified at New York Tax Law §§ 480-b, 481(l)(e), and 1846, requires a tobacco manufacturer to certify annually either (1) that it is a participating manufacturer, or (2) that it has complied with the Escrow Statute. See id. § 480-b(l). New York agents cannot affix tax stamps to cigarettes if the manufacturer has not made the required certification. See id. § 480-b(2). Cigarettes that do not bear a tax stamp are subject to seizure or forfeiture, see id. § 1846, and a civil penalty of up to $5,000 may be assessed on the non-compliant manufacturer, see id. § 481(l)(c). C. Prior Proceedings 1. Freedom Holdings I On April 16, 2002, plaintiffs commenced this action in the Southern District of New York, alleging that New York’s Contraband Statute violated the Sherman Act, the Commerce Clause, and the Fourteenth Amendment. The district court dismissed the complaint for failure to state a claim, and plaintiffs appealed to this court. We affirmed dismissal of the Commerce Clause claim, concluding that the Contraband Statute did not discriminate against out-of-state economic interests, burden interstate commerce, or regulate commerce occurring outside New York, as plaintiffs alleged. See Freedom Holdings I, 357 F.3d at 217-21. Noting deficiencies in plaintiffs’ Fourteenth Amendment equal protection claim, we remanded to the district court, so that plaintiffs could have an opportunity to amend their complaint. See id. at 235. At the same time, we reversed the dismissal of plaintiffs’ antitrust claim, applying a two-step analysis that asked, (1) whether the Contraband Statute effected a per se violation of the Sherman Act and, if so, (2) whether it was nevertheless saved by the doctrine of state action immunity. Accepting plaintiffs’ allegations as true, as we were required to do in reviewing a judgment of dismissal, we obsexwed that the Contraband Statute “allegedly enforced an express market-sharing agreement among private tobacco manufacturers, the MSA.” Id. at 224. We determined that plaintiffs pleaded both market division and price fixing to the extent “market-share increases among manufacturers are substantially ‘penalized’ ” by the MSA. Id. at 225. Thus, we concluded that plaintiffs adequately stated an antitrust claim by alleging that “the combination of the MSA, the Escrow Statutes, and the Contraband Statutes, allows OPMs to set supracompetitive prices that effectively cause other manufacturers either to charge similar prices or to cease selling.” Id. at 226. We next considered whether the doctrine of state action immunity shielded the Contraband Statute from application of the antitrust laws. See California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 105, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980). Although we were satisfied that the MSA regime was “clearly articulated and affirmatively expressed as state policy,” the first prerequisite for state action immunity, Freedom Holdings I, 357 F.3d at 226-27, we concluded that the complexity of the MSA scheme precluded determination at the dismissal stage as to whether the state was motivated by legitimate policy goals or by an impermissible desire to share in monopoly profits, see id. at 227-31. We concluded further that the state was not entitled to immunity at the pleading stage because it had yet to make the required evidentiary showing that it actively supervised pricing decisions made by cigarette manufacturers participating in the MSA. See id. at 231-32. 2. Freedom Holdings II In response to defendants’ petition for rehearing, we issued a second opinion expanding on our reasons for reversing dismissal. See Freedom Holdings II, 363 F.3d 149. First, we observed that “According to the complaint, the function of the Escrow Statute is to coerce NPMs to join the MSA because the costs of compliance with the Escrow Statute are substantially higher than the costs of being an SPM.” Id. at 152; see also id. at 154. Second, we identified the core aspect of the alleged market division as the SPM pricing formula. Parsing that formula, we noted that it was possible that SPMs were penalized for gaining market share from OPMs because, “under the MSA, if the numerator increases because the SPM has taken market share from an OPM, the denominator decreases by the amount of the increase. Thus, the SPM’s proportion of the annual payment increases by more than its proportion of overall market share.” Id. at 153. We, therefore, rejected defendants’ contention that, as a matter of law, an SPM’s marginal payment per cigarette is always lower than an OPM’s per-cigarette payment, and we concluded that plaintiffs should be afforded an opportunity to prove that “payments increase disproportionately (i.e. in more than a 1 to 1 ratio) when market share increases.” Id. Third, as to state action immunity, we reiterated that, as alleged in the complaint, the Contraband Statute was subject to the two-part analysis of California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. at 105, 100 S.Ct. 937, because NPMs are “forced ... to become part of the market-sharing agreement set up by the MSA,” Freedom Holdings II, 363 F.3d at 154. Thus, “the Challenged Statutes have the effect, according to the allegations of the complaint, of delegating price-setting authority to the OPMs.” Id. at 155. In any event, it was “too soon to say whether the state will ultimately be able to elicit evidence sufficient to meet” the second, active supervision, prong of Midcal analysis. Id. at 157. 3. Freedom Holdings III, IV, and V On remand after our decisions in Freedom Holdings I and Freedom Holdings II, plaintiffs amended their complaint and moved for a preliminary injunction barring enforcement of New York’s Escrow and Contraband Statutes. On September 14, 2004, the district court preliminarily enjoined enforcement of the Escrow Statute’s allocable share release amendment, but it denied the motion in all other respects, see Freedom Holdings III, 447 F.Supp.2d at 233, thereafter also denying rehearing, see Freedom Holdings IV, 2004 WL 2251668. Plaintiffs appealed, and we affirmed the denial of broader injunctive relief because plaintiffs failed to demonstrate the requisite likely irreparable harm. See Freedom Holdings V, 408 F.3d at 115. We did not discuss the likelihood of plaintiffs’ success on the merits. 4. Grand River In Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158 (2d Cir.2005), we considered a second Commerce Clause challenge to the MSA. The Grand River plaintiffs alleged that New York’s Escrow and Contraband Statutes effectively “force out-of-state merchants to seek New York regulatory approval before undertaking an out-of-state transaction, [and] that ... interstate regulatory gridlock would occur if many or every state adopted similar legislation.” Id. at 171 (quoting Freedom Holdings I, 357 F.3d at 221 (internal quotation marks omitted)). Taking “no position as to the ultimate viability” of this contention, we concluded that the pleading should not have been dismissed as a matter of law because the Grand River plaintiffs “stated a possible claim that the practical effect of the chailenged statutes and the MSA is to control prices outside of the enacting states by tying both the SPM settlement and NPM escrow payments to national market share, which in turn affects interstate pricing decisions.” Id. at 173. D. Freedom Holdings VI: The Challenged Judgment On February 10, 2006, plaintiffs again amended their complaint to add a Commerce Clause claim conforming to Grand River. After discovery closed, the district court commenced a three-day hearing on November 18, 2008, after which it entered judgment for defendants as if after a bench trial pursuant to Federal Rule of Civil Procedure 52. See Freedom Holdings VI, 592 F.Supp.2d 684. 1. Findings of Fact Relying on data compiled by Pricewaterhouse Coopers in the course of its duties as the independent auditor responsible for calculating payment obligations and reporting data to the states and participating manufacturers under the MSA, the district court made a number of findings, including the following: First, “the payment structure of the MSA does not favor the major cigarette companies over” SPMs and NPMs. Id. at 691. “[U]pdated reports revealfed]” that “OPMs continue to pay more per carton ($5.31 in 2007), including payments to the four previously settled states, than do the non-grandfathered SPMs ($5.07), and both pay more than NPMs pay under the Escrow Statutes ($5.02).” Id. While “[gjrandfathered SPMs, viewed in isolation, have the lowest average payment obligation ($2.63), since they pay nothing for cigarettes sold up to their grandfathered threshold,” id., credible expert testimony indicated that marginal cost, not average cost, determined price, see id. at 698. The marginal cost for cigarette sales above the grandfathered threshold was “about what non-grandfathered SPMs pay ($5.07), which is more than NPMs pay.” Id. at 691. Second, NPMs had not “suffered,” but rather “prospered,” under the combined effect of the MSA and challenged state statutes. Id. at 697. Specifically, while OPMs’ total market share declined from 97.1 % to 85.9% between 1997 and 2007, NPM market share during that same period increased “from 0.4% in 1997 to a peak of 8.1% in 2003, ... to 5.4% in 2007.” Id. at 691. The “figures” cited in these two groups of findings “undermine” defendants’ argument “that ‘NPMs are deterred from seeking increased market share because the high costs of compliance with the Escrow Statute preclude their competing through lower prices.’ ” Id. at 697. Indeed, this conclusion obtained even if plaintiffs had proved — which they did not — that the MSA discouraged competition among OPMs. The evidence showed not only that NPMs could exploit disproportionate price increases by MSA participants, but that they “have done so vigorously to the NPMs’ market advantage.” See id. at 699. Third, “[n]o evident economic force drives NPMs to the MSA.” Id. at 697. Insofar as plaintiffs complained that NPMs faced a relative tax hardship because escrow payments, in contrast to MSA payments, are not tax deductible, plaintiffs ignored an important distinction: MSA participants could “not recover their payments once made, while NPMs receive annual interest earnings on escrowed funds and will recover, after twenty-five years, any funds not applied to judgments or settlements with the States.” Id. If plaintiffs eliminated these differences “by disclaiming their rights to interest income and reversion of principal,” they would be “eligible to deduct their [escrow] payments.” Id. Fourth, plaintiffs failed to prove that the MSA “caused [them] or other NPMs to surrender pricing autonomy.” Id. at 698. To the contrary, Christopher Nelson, chief financial officer of NPM Freedom Holdings, and Jeffrey Avo Uvezian, president of NPM International Tobacco Partners, testified that “their pricing decisions are made independently and that they are not compelled to follow price leadership by their larger competitors.” Id. Similarly, Kevin Altman, who set prices for two NPMs, CigTee and JJA Distributors LLC, “testified that both companies made independent pricing decisions that were not dictated by OPMs or SPMs.” Id. “The aggregate historical data” not only supported this testimony, it demonstrated that “NPMs have taken competitive advantage of higher prices charged by the large cigarette manufacturers.” Id. “Only the Escrow Statutes,” not the MSA, have an impact on “NPMs’ cost structure.” Id. Their effect, however, was akin to a “flat tax,” which did not violate antitrust laws. Id. at 699. 2. The Antitrust Claim In light of these findings, the district court entered judgment for defendants on plaintiffs’ antitrust claim, holding that plaintiffs had failed to carry their burden to prove a per se violation of the Sherman Act: [T]he MSA does not mandate or authorize conduct that necessarily constitutes a violation of the antitrust laws in all cases, or place irresistible pressure on a party to violate the antitrust laws in order to comply with the [agreement]. The continued strength of NPMs proves as much, and the absence of financial pressure on NPMs to join the MSA confirms it. Nothing in the Escrow or Contraband Statutes mandates or authorizes illegal conduct in all cases, an essential ingredient of a per se antitrust violation. Id. at 700 (internal quotation marks and modifications omitted). Alternatively, the district court concluded that the challenged statutes were shielded from Sherman Act preemption by state action immunity according to the two-part test articulated in California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937. First, addressing the question of purpose that Freedom Holdings II determined could not be decided on the pleadings, the district court identified a “plausible nexus” between various provisions of the MSA and the states’ twin goals of decreasing cigarette consumption and raising revenues to meet health costs associated with such consumption. Freedom Holdings VI, 592 F.Supp.2d at 701. Second, the district court determined that New York actively supervised the competitive effects of the MSA by closely tracking data provided by the MSA auditor. See id. at 702. The district court identified no need for greater supervision in light of its findings that NPMs were able to gain market share under the challenged scheme. See id. 3. Commerce Clause Claim The district court also entered judgment for defendants on plaintiffs’ claim that the extraterritorial effects of “interlocking” state escrow statutes violate the Commerce Clause by creating a uniform, national system of cigarette regulation. While the enactment of similar escrow statutes by a number of states contributed to the national increase in cigarette prices, the district court concluded that this did not equate to regulation of interstate commerce by New York because plaintiffs failed to show that “commercial actors outside New York are bound in some way by the dictates of New York statutes.” Id. at 707. Plaintiffs timely appealed the district court’s judgment. II. Discussion A. Standard of Review On appeal from a bench trial, we accord considerable deference to a district court’s findings of fact, which we will reverse only for clear error. We review its conclusions of law, or mixed fact and law, de novo. See Skoros v. City of New York, 437 F.3d 1, 12 (2d Cir.2006). We may affirm the district court’s decision on any ground appearing in the record. See Liberty Mut. Ins. Co. v. Hurlbut, 585 F.3d 639, 648 (2d Cir.2009). B. Antitrust Claim In challenging the trial judgment, plaintiffs submit, as they have throughout this litigation, that the Sherman Act preempts New York’s Escrow and Contraband Statutes because those laws “implement[ ] the illegal per se output cartel set up in the MSA.” Second Supp. & Am. Compl. Prayer for Relief ¶ 2. As we recognized in Freedom Holdings I, 357 F.3d at 222-23, a two-step inquiry guides analysis of this claim. First, the party asserting preemption must demonstrate an “irreconcilable conflict” between the challenged statute and the Sherman Act. Rice v. Norman Williams Co., 458 U.S. 654, 659, 102 S.Ct. 3294, 73 L.Ed.2d 1042 (1982). Such a conflict will be found only “when the conduct contemplated by the statute is in all cases a per se violation” of the antitrust laws. Id. at 661,102 S.Ct. 3294; accord Freedom Holdings I, 357 F.3d at 223. Only “manifestly anticompetitive” restraints “lacking] any redeeming virtue” — e.g., if competitors privately agree among themselves to fix prices or to divide markets — constitute such per se violations. Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877, 886-87, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007) (internal quotation marks and ellipsis omitted). By contrast, restraints “unilaterally imposed by government ... to the exclusion of private control” do not violate the antitrust laws. Fisher v. City of Berkeley, 475 U.S. 260, 266, 106 S.Ct. 1045, 89 L.Ed.2d 206 (1986); accord Massachusetts Food Ass’n v. Mass. Alcoholic Beverages Control Comm’n, 197 F.3d 560, 563 (1st Cir.1999) (Boudin, J.). Where, however, state law does not regulate unilaterally but, rather, grants private actors a degree of regulatory control over competition, the statute may be preempted as a “hybrid” restraint on trade. See 321 Liquor Corp. v. Duffy, 479 U.S. 335, 345-46 & n. 8, 107 S.Ct. 720, 93 L.Ed.2d 667 (1987); accord Freedom Holdings I, 357 F.3d at 223; see also I Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law (“Areeda & Hovenkamp”), ¶ 217a, at 352 (3d ed.2006). The touchstone at the first step of inquiry is, therefore, whether the challenged New York statutes “ ‘mandate[ ] or authorize[ ]’ ” private antitrust violations. Fisher v. City of Berkeley, 475 U.S. at 265, 106 S.Ct. 1045 (quoting Rice v. Norman Williams Co., 458 U.S. at 661, 102 S.Ct. 3294). Second, even if plaintiffs showed that the challenged statutes mandate or authorize a per se antitrust violation, those laws might still be saved from preemption by the doctrine of state action immunity, see Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), if the anti-competitive conduct at issue is both “clearly articulated and affirmatively expressed as state policy” and “actively supervised by the State itself,” California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. at 105, 100 S.Ct. 937 (internal quotation marks omitted). In making this determination, our concern is not with whether the challenged statutes benefit consumers. See Rice v. Norman Williams Co., 458 U.S. at 659, 102 S.Ct. 3294 (“A state statute is not preempted by the federal antitrust laws simply because the state scheme might have an anticompetitive effect.”). The critical question is whether the statutes reflect actual state policy outside the purview of the Sherman Act, see Parker v. Brown, 317 U.S. at 351, 63 S.Ct. 307, or whether the state has merely “cast[ ] ... a gauzy cloak of state involvement over what is essentially a private price-fixing arrangement,” in which case preemption will follow, California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. at 106, 100 S.Ct. 937. On appeal, plaintiffs rely heavily on our decisions in Freedom Holdings I and Freedom Holdings II in arguing that the district court erred at both steps of the preemption analysis. When we reviewed the dismissal of plaintiffs’ complaint in Freedom Holdings I and Freedom Holdings II, however, plaintiffs were required only to demonstrate that they could prove some set of facts in support of their claim. See Freedom Holdings I, 357 F.3d at 215 (“A complaint cannot be dismissed for failure to state a claim ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ”) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). After a trial judgment in favor of defendants, plaintiffs must be able to point to record evidence that precluded the district court from finding, as it did, that the challenged statutes are unilateral state actions that do not mandate or authorize private parties to restrain trade or, in any event, that the statutes are not subject to Sherman Act preemption by virtue of the state action immunity doctrine. We conclude that the district court was not precluded from making either determination. 1. Plaintiffs’ Claim of a Per Se Violation of the Sherman Act a. Plaintiffs Must Demonstrate Antitrust Injury from the Challenged StaUites Plaintiffs argue that they proved a per se violation of the Sherman Act by showing that “the MSA constructed an output cartel,” Appellants’ Br. at 57, and the Escrow and Contraband Statutes “conscript[ ] NPMs into the cartel as involuntary members,” id. at 58. Plaintiffs contend that because they demonstrated such a per se violation, they were not required to adduce direct evidence of the challenged statutes’ actual anti-competitive effects. See National Collegiate Athletic Ass’n v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85, 109, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984) (“[W]hen there is an agreement not to compete in terms of price or output, ‘no elaborate industry analysis is required to demonstrate the anticompetitive character of such an agreement.’ ”) (quoting National 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)). Even if such evidence were required, plaintiffs submit that they proved that the MSA has eliminated NPM competition, has preserved the market share of participating manufacturers, and has allowed participating manufacturers to maintain supra-competitive prices. At the outset, we note that plaintiffs do not challenge the MSA directly in making their per se argument. Nor could they. Section 16 of the Clayton Act affords injunctive relief only to plaintiffs who suffer “threatened loss or damage by a violation of the antitrust laws.” 15 U.S.C. § 26. While a conspiracy among MSA participating manufacturers to fix prices or to divide the cigarette market among themselves would certainly violate the antitrust laws, see United States v. Topco Assocs., Inc., 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972); United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940), such a violation would not threaten plaintiffs with loss or damage. To the contrary, if NPMs are not penalized for increasing market share, they can maintain lower prices and thereby benefit from the alleged anti-competitive effects of the MSA. See Sanders v. Brown, 504 F.3d 903, 911 (9th Cir.2007) (“If the OPMs really are charging artificially high prices, and thus making artificially high profits, an NPM conceivably could compete on price by charging a ‘normal’ price and still make a ‘normal’ profit, even taking the escrow payment into account.”). Thus, because the law is well established that competitors lack standing to challenge a conspiracy by their rivals to raise their own prices, see Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 337, 110 S.Ct. 1884, 109 L.Ed.2d 333 (1990); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 582-83, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), in analyzing plaintiffs’ appeal from the trial judgment, we ask whether they proved a per se antitrust injury attributable to the challenged statutes. b. Plaintiffs’ Failure To Prove that the Challenged Statutes Establish a Hybrid Restraint of Trade Because section 1 of the Sherman Act proscribes only private party “contraet[s], combination^] ... or conspiracies] in restraint of trade,” 15 U.S.C. § 1, the threshold question at trial was whether the challenged statutes are unilateral acts of a state falling outside federal antitrust law. As the Supreme Court explained in upholding a city ordinance setting rent ceilings in Fisher v. City of Berkeley, antitrust laws would prohibit private property owners from “voluntarily band[ing] together to stabilize rents in the city,” but the local law involved no “concerted action.” 475 U.S. at 266, 106 S.Ct. 1045. The Court ruled that “[a] restraint imposed unilaterally by government does not become concerted action within the meaning of the [Sherman Act] simply because it has a coercive effect upon parties who must obey the law.” Id. at 267, 106 S.Ct. 1045. Nor does a government restraint become concerted action because certain citizens benefit from it, see id. at 264, 106 S.Ct. 1045 (“[T]he function of government may often be to tamper with free markets, correcting their failures and aiding their victims.... ”), or even have urged it, cf. City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 375, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991) (recognizing inevitability and desirability of public officials acting in response to private citizens’ requests in rejecting argument for narrowing state action immunity). As we recognized in Freedom Holdings I, however, there is a distinction between laws whose restraints are the product of unilateral state action and those whose restraints are “hybrid.” 357 F.3d at 223-24 & n. 17 (citing, e.g., Fisher v. City of Berkeley, 475 U.S. at 267-68, 106 S.Ct. 1045). Hybrid restraints result when legislation confers a degree of regulatory power on private parties. See Fisher v. City of Berkeley, 475 U.S. at 268, 106 S.Ct. 1045; Rice v. Norman Williams Co., 458 U.S. at 665 n. 1, 102 S.Ct. 3294 (Stevens, J., concurring in judgment). Thus, statutes that effectively mandate resale price maintenance have been preempted by federal antitrust law as hybrid restraints of trade. See Liquor Corp. v. Duffy, 479 U.S. at 340, 107 S.Ct. 720 (invalidating New York retail pricing system that “permits wholesalers to set retail prices, and retail markups, without regard to actual retail costs”); California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. at 103, 100 S.Ct. 937 (invalidating legislation under which “wine producer holds the power to prevent price competition by dictating the prices charged by wholesalers”); Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 386, 71 S.Ct. 745, 95 L.Ed. 1035 (1951) (invalidating Louisiana law providing that buyer would not resell except at price stipulated by vendor). On their face, the New York Escrow and Contraband Statutes mandate and enforce payments that, as in Fisher, are “unilaterally imposed by government ... to the exclusion of private control.” 475 U.S. at 266, 106 S.Ct. 1045. The Escrow Statute requires cigarette manufacturers to make per-cigarette payments to the state according to a statutorily specified formula. See N.Y. Pub. Health Law § 1399-pp(2)(a). The Contraband Statute enforces these payment obligations by requiring cigarette manufacturers to certify their compliance with the Escrow Statute. See N.Y. Tax Law § 480 — b(l). If no such certification is made, various state-imposed penalties follow. See id. §§ 480 — b(2), 481(l)(c), 1846. None of these challenged provisions grants any regulatory control to private parties. In reversing the dismissal of plaintiffs’ complaint, we nevertheless concluded that plaintiffs stated a possible claim that the challenged statutes functioned as a hybrid restraint. See Freedom Holdings I, 357 F.3d at 216, 223-24. In doing so, we credited, as we were then required to do, plaintiffs’ allegation that “the function of the Escrow Statute is to coerce NPMs to join the MSA because the costs of compliance with the Escrow Statute are substantially higher than the costs of being an SPM.” Freedom Holdings II, 363 F.3d at 152; see Compl. ¶ 20; Second Supp. & Am. Compl. ¶ 17. We concluded that proof of this allegation could, in turn, support an inference that the challenged statutes required a cigarette manufacturer “to become part of the market-sharing agreement set up by the MSA — i.e. it must not gain market share and it therefore cannot compete on price.” Freedom Holdings II, 363 F.3d at 154. In sum, because the challenged statutes were alleged to force NPMs to join the MSA — which we assumed, at the pleading stage, discouraged participating manufacturers from gaining market share and competing on price — we concluded that plaintiffs might prove that the statutes operated as a hybrid “delegat[ion of] price-setting authority to the OPMs.” Freedom Holdings II, 363 F.3d at 155. On review of a challenged trial judgment, our focus necessarily shifts from what plaintiffs might plausibly prove to what the district court found they did — or did not — prove. Consistent with our obligation to view the evidence in the light most favorable to the challenged judgment, we accord great deference to the district court’s resolution of evidentiary conflicts, its choices among competing inferences to be drawn from the evidence, and its decision as to what weight to assign particular evidence. See Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (“In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo. If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” (internal quotation marks and citation omitted)); accord Siewe v. Gonzales, 480 F.3d 160, 167-68 (2d Cir.2007). Plaintiffs cannot secure reversal simply by demonstrating that the evidence could support inferences favorable to their claim. Rather, they must show that the evidence permitted no other inferences. See Anderson v. Bessemer City, 470 U.S. at 574, 105 S.Ct. 1504 (holding that “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous”). (1) Plaintiffs’ Failure To Prove that the Challenged Statutes Compelled NPMs To Join the MSA The district court found that plaintiffs failed at trial to prove the linchpin of their hybrid restraint claim, i.e., that the severity of the escrow payments established by the challenged statutes coerced NPMs to join the allegedly anticompetitive MSA. Plaintiffs initially submitted that the relative severity of escrow payments was established by the fact that, unlike MSA payments, “they are non-deductible for tax purposes.” Second Supp. & Am. Compl. ¶ 17; see Freedom Holdings II, 363 F.3d at 152. At trial, the district court found that escrow payments would be tax deductible if NPMs disclaimed their rights to interest and release. See Freedom Holdings VI, 592 F.Supp.2d at 697; see also Freedom Holdings III, 447 F.Supp.2d at 238-39. Plaintiffs do not challenge this determination on appeal. Instead, they submit that the district court erred in further finding that NPMs not only do not pay substantially more under the Escrow Statute than they would pay if they joined the MSA; they pay less. See Freedom Holdings VI, 592 F.Supp.2d at 691 (finding that, for sales above grandfathered thresholds, SPMs pay more than NPMs). Plaintiffs’ attack is two-fold. First, plaintiffs fault the district court for relying on data reflecting OPM settlement payments nationwide, rather than data limited to states that joined the MSA. Plaintiffs assert that by including payments made to the four states that settled tobacco litigation before the MSA was executed, the data relied on by the district court inflated the cost of OPM payments by an aggregate of $1-2 billion per year. Specifically, plaintiffs contend that, in 2007, OPMs paid only $4.04 per carton to comply with the MSA, not $5.31 as found by the district court. Second, plaintiffs submit that the data relied on by the district court was inflated because it included payments owed — but not paid — by SPMs and, further, failed to take into consideration smuggled cigarettes not reported by participating manufacturers. Plaintiffs assert that, between 2003 and 2008, SPMs have failed to pay approximately 13% of payments required by the MSA, either because those payments are disputed or because SPMs have simply defaulted on their MSA obligations. Neither of these arguments persuades us that the district court committed clear error in rejecting plaintiffs’ claim that the escrow payments coerce NPMs to join the MSA. A comparison of MSA and escrow payments is complicated by the fact that the former are calculated based on relative market share while the latter are based on a per-cigarette fee. See Freedom Holdings III, 447 F.Supp.2d at 238. Nevertheless, plaintiffs’ contention that OPMs paid only $4.04 per carton — compared to NPMs’ escrow payment of $5.02 per carton — does not find support even in the data on which they rely. That data indicates that OPMs paid $4.52 per carton to comply with the MSA. Further, although plaintiffs fault the district court for adding $0.78 to the $4.52 figure to reflect OPMs’ payments to the four states that settled outside the MSA, the alternative of dividing OPMs’ payments to the MSA settling states by cigarettes sold nationwide appears even less reliable. Also, while it is undisputed that some SPMs have not fully met their payment obligations under the MSA, the weight to be accorded this fact is debatable given that a number of NPMs appear also to have failed to satisfy their escrow obligations. In these circumstances, the district court did not clearly err in finding that plaintiffs failed to carry their burden of proving that they were required to pay so much more under the escrow statutes than under the MSA that the challenged statutes effectively compelled them to join the MSA. (2) Plaintiffs’ Failure To Prove that the Challenged Statutes Delegate Price-Setting Authority to OPMs Plaintiffs submit that the challenged statutes nevertheless effect a hybrid restraint of trade because they maintain the higher cigarette prices set by manufacturers participating in the MSA. The record evidence did not compel the district court to so find. There is no doubt that escrow fees were designed to neutralize the cost disadvantage experienced by MSA participants visa-vis NPMs. See MSA § IX(d)(2)(E). But that is hardly sufficient to demonstrate that the challenged statutes mandate or authorize MSA participants to exercise “unsupervised private discretion” to fix prices or to penalize gains in market shares. I Areeda & Hovenkamp, supra, ¶ 217b, at 356; see generally Massachusetts Food Ass’n v. Mass. Alcoholic Beverages Control Comm’n, 197 F.3d at 565 (“What is centrally forbidden is state licensing of arrangements between private parties that suppress competition — not state directives that by themselves limit or reduce competition.” (emphasis in original)). Rather, as the district court correctly concluded, the statutes’ effort to impose a roughly equivalent cost on NPMs to that borne by manufacturers participating in the MSA can be analogized to the imposition of a flat tax. A tax increase, like any cost, will likely be passed on to consumers in the form of higher prices, but where, as here, the state alone imposes the increased cost, there is no private collusion implicating the antitrust laws. See Freedom Holdings VI, 592 F.Supp.2d at 699 (citing Freedom Holdings I, 357 F.3d at 229, and Freedom Holdings II, 363 F.3d at 152). That competitors respond in similar ways to a tax they must all pay does not, by itself, manifest an agreement proscribed by the Sherman Act. See Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993) (holding that “tacit collusion” of participants in oligopolistic market to raise prices in response to higher costs is “not in itself unlawful”); Williamson Oil Co. v. Philip Morris U.S.A., 346 F.3d 1287, 1314-15 (11th Cir.2003) (explaining why lock-step price increases following MSA were insufficient evidence of price-fixing); see generally Donald F. Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals To Deal, 75 Harv. L.Rev. 655, 663 (1962) (“[Conscious parallelism is devoid of anything that might reasonably be called agreement when it involves simply the independent responses of a group of competitors to the same set of economic facts.... ”). In any event, the district court did not reject plaintiffs’ price fixing argument simply in theory. It found it belied in fact by substantial testimonial and documentary evidence indicating that, even under the challenged statutes, NPMs have retained pricing autonomy, which they have exercised to gain substantial market share at the expense of OPMs. See Freedom Holdings VI, 592 F.Supp.2d at 698-99. In urging us to identify factual error, see Appellants’ Br. at 26-27 (maintaining that “Enforcement Statutes ha[ve] succeeded in crushing the NPMs”), plaintiffs submit that the district court’s market share findings were clearly erroneous because Pricewaterhouse Coopers based these calculations, like its MSA payment data, on national market share without distinguishing between states that joined in the MSA and states that reached independent settlements. Plaintiffs cite data suggesting that amendments to the allocable share release provision of state escrow statutes have resulted in declining NPM market share since it peaked at 8.1% in 2003. This is not surprising as such amendments require NPMs to make escrow payments on a greater percentage of cigarettes sold than previously. Further, the district court reasonably determined that the 2004 decision by General Tobacco, the largest NPM, to join the MSA also explains the expansion of SPMs’ total market share at the expense of the NPMs in the years thereafter. See Freedom Holdings VI, 592 F.Supp.2d at 691 n. 5. In any event, even if allocable share amendments have eroded the dramatic market share gains that NPMs realized in the immediate aftermath of the MSA, the same data indicates that NPMs have gained considerable overall market share from the 0.4% held at the time the MSA went into effect to the 5.4% held in 2007. In short, we identify no error in the district court’s determination that the allegations we accepted for purposes of reviewing the dismissal of plaintiffs’ complaint — that the challenged statutes forced NPMs “to become part of the market-sharing agreement set up by the MSA,” where OPMs fixed and maintained inflated prices and penalized gains in market share, Freedom Holdings II, 363 F.3d at 154 — were not proved by plaintiffs at trial. Rather, we conclude that substantial evidence supported the district court’s conclusion that the challenged New York statutes, although in furtherance of the MSA, do not manifest a hybrid restraint of trade because they do not mandate or authorize any private party to exercise anticompetitive regulatory authority. This decision is consistent with those of our sister circuits who have similarly rejected antitrust challenges to state escrow statutes in furtherance of the MSA. See Xcaliber Int’l Ltd. v. Attorney Gen. of La., 612 F.3d 368, 374-77 (5th Cir.2010) (rejecting challenge to Louisiana statute); Grand River Enters. Six Nations, Ltd. v. Beebe, 574 F.3d 929, 936-39 (8th Cir.2009) (rejecting challenge to Arkansas statute), cert. denied, — U.S. -, 130 S.Ct. 2095, 176 L.Ed.2d 723 (2010); KT & G Corp. v. Attorney Gen. of Okla., 535 F.3d 1114, 1128-33 (10th Cir.2008) (rejecting challenge to Kansas and Oklahoma statutes); Sanders v. Brown, 504 F.3d at 910-11 (9th Cir.2007) (rejecting challenge to California statutes), cert. denied, 553 U.S. 1031, 128 S.Ct. 2427, 171 L.Ed.2d 229 (2008); Tritent Int’l Corp. v. Kentucky, 467 F.3d 547, 554-58 (6th Cir.2006) (rejecting challenge to Kentucky statutes). But cf. AD. Bedell Wholesale Co. v. Philip Morris Inc., 263 F.3d 239, 247-54 (3d Cir.2001) (holding MSA per se illegal output restriction, but defendants immune under Noerr-Pennington doctrine), cert. denied, 534 U.S. 1081, 122 S.Ct. 813, 151 L.Ed.2d 697 (2002). We emphasize, however, the limited scope of our decision. Because plaintiffs have not proved that the challenged statutes coerce them to join the MSA or that the MSA otherwise injures them, they lack standing to challenge provisions of the MSA that they allege constitute an illegal agreement to divide the cigarette market among participating manufacturers. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 582-83, 106 S.Ct. 1348. Thus, we have no occasion here to consider whether the MSA constitutes a private agreement that impermissibly restrains trade by penalizing SPMs when they gain market share from OPMs. See Freedom Holdings II, 363 F.3d at 153; Freedom Holdings VI, 592 F.Supp.2d at 698 & n. 15; Freedom Holdings III, 447 F.Supp.2d at 258. Nor need we address defendants’ arguments that MSA payments “do not change materially based on volume sold” or that the SPM payment formula “maintains a largely constant per-carton payment no matter how much market share the SPMs acquire.” Appellees’ Br. at 39 n. 9 (emphasis added). We hold simply, in light of the district court’s findings, that plaintiffs failed to prove that the challenged statutes granted regulatory power to private parties in violation of the antitrust laws that caused plaintiffs any injury. 2. The Sherman Act Does Not Apply to the Challenged Statutes Because They Manifest “State Action” In Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315, the Supreme Court construed the Sherman Act to proscribe only private, not state, action. Because the Court grounded its ruling in the absence of a clear statutory statement of Congress’s intent to preempt state regulation, see id. at 351, 63 S.Ct. 307, courts and commentators have concluded that the decision rests on “principles of federalism and state sovereignty,” Patrick v. Burget, 486 U.S. 94, 99, 108 S.Ct. 1658, 100 L.Ed.2d 83 (1988); see also IA Areeda & Hovenkamp, supra, ¶ 221b, at 48 (noting that Parker “was deemed necessary to protect the states’ coordinate role in government”). Thus, “the premise of Parker v. Brown is that federal courts in applying the antitrust laws, should assume that Congress accepted the risks of state-authorized displacement of competition.” Cine 42nd St. Theater Corp. v. Nederlander Org., Inc., 790 F.2d 1032, 1049 (2d Cir.1986) (Newman, J., concurring) (citation omitted). Parker cautioned, however, that a state cannot “give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful.” 317 U.S. at 351, 63 S.Ct. 307. In its simplest form, this means that “a state cannot shield private parties from the federal antitrust laws by enacting a statute saying no more than that [competitors] may agree to fix prices.” Massachusetts Food Ass’n v. Mass. Alcoholic Beverages Control Comm’n, 197 F.3d at 563-64. As Justice Powell famously stated, “[t]he national policy in favor of competition cannot be thwarted by casting such a gauzy cloak of state involvement over what is essentially a private price-fixing arrangement.” California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. at 106, 100 S.Ct. 937. From these principles, we can conclude that a state’s own actions are not subject to antitrust preemption. See Hoover v. Ronwin, 466 U.S. 558, 568, 104 S.Ct. 1989, 80 L.Ed.2d 590 (1984). But when private parties participate in anti-competitive conduct purportedly authorized by state action, a closer question arises. See id.; FTC v. Ticor Title Ins. Co., 504 U.S. 621, 633, 112 S.Ct. 2169, 119 L.Ed.2d 410 (1992). Such conduct is shielded from antitrust liability only if it is “clearly articulated and affirmatively expressed as state policy” and “actively supervised by the State itself.” California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. at 105, 100 S.Ct. 937 (internal quotation marks omitted). Our conclusion that plaintiffs failed to prove that New York’s Escrow and Contraband Statutes authorize Sherman Act violations obviates the need for detailed analysis of whether their alleged anti-cornpetitive aspects are clearly articulated, affirmatively expressed, or actively supervised. See Freedom Holdings I, 357 F.3d at 223; IA Areeda & Hovenkamp, supra, ¶221a, at 42. Indeed, Hoover suggests that “anticompetitive conduct performed entirely by state actors, without any private involvement, ... effectively satisfied] the Midcal supervision requirement.” Freedom Holdings I, 357 F.3d at 232 n. 27. A number of our sister circuits have relied on Hoover to hold that the MSA and statutes enacted in furtherance of it constitute unilateral state action exempt from the application of the antitrust laws. See Xcaliber Int’l Ltd. v. Attorney Gen. of La., 612 F.3d at 378-80 & n. 11 (5th Cir.2010); Grand River Enters. Six Nations, Ltd. v. Beebe, 574 F.3d at 939-41 (8th Cir.2009); Sanders v. Brown, 504 F.3d at 914-19 (9th Cir.2007). While we generally agree with this approach, we nevertheless apply the Midcal test “out of an abundance of caution” to explain why we reject plaintiffs’ argument that the district court erred in finding the challenged statutes to constitute state action immune from antitrust preemption. Costco Wholesale Corp. v. Maleng, 522 F.3d 874, 888 (9th Cir.2008). At the outset, we observe that the nature of the clear articulation and active supervision required by Midcal necessarily varies with the nature of the challenged restraint. Thus, state authorization is sufficiently clear when “the legislature contemplated the kind of action” challenged. City of Lafayette v. La. Power & Light Co., 435 U.S. 389, 415, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978) (plurality opinion) (internal quotation marks omitted). Likewise, “the active supervision requirement mandates that the State exercise ultimate control over the challenged anticompetitive conduct.” Patrick v. Bur-get, 486 U.S. at 101, 108 S.Ct. 1658. When, in Freedom Holdings I, we concluded that New York had not sufficiently articulated “why the market-share provisions are needed to effectuate state policy goals,” 357 F.3d at 228, or actively supervised “the pricing decisions within the allegedly-anticompetitive market structure enforced by the Contraband Statutes,” id. at 231, we relied on plaintiffs’ allegations that the challenged statutes coerced NPMs into joining the MSA, under which OPMs exercised effective authority to fix prices and control market shares. Because plaintiffs failed to prove these allegations at trial, however, their claim reduces to a challenge to what is effectively a flat tax whose only arguably “anti-competitive” effect is to raise cigarette prices. a. The Creation of an Escrow Fund and Enforcement of Payment Obligations Are Clearly Articulated and Affirmatively Expressed as State Policy Midcal’s clear articulation/affirmative expression requirement “ensure[s] that state action immunity is afforded only to actions taken by the state.” Id. at 227. In Freedom Holdings I, we easily concluded that the entire MSA scheme satisfied this requirement because “agreement to the MSA by the New York Attorney General, approval of it by a New York court, and passage of the [Escrow and] Contraband Statutes were express acts of the State of New York.” Id. (footnote omitted). At the same time, we suggested that the requirement also serves the “ancillary purpose” of revealing whether “the State’s policy goals are sufficient to qualify for the Parker immunity,” observing that “simply protecting private parties from competition is not a sufficient goal.” Id. at 227 (citing Parker v. Brown, 317 U.S. at 351-52, 63 S.Ct. 307). Although we did not think that matter could be resolved at the pleading stage, see id. at 216, we doubted “that a federal court would upset a state statute solely because it failed to meet the explanatory aspect of the first Midcal prong,” id. at 227. Indeed, we later clarified that our initial rejection of state action immunity in Freedom Holdings I “expressly relied on the challenged scheme’s failure to meet the second Midcal prong.” Freedom Holdings II, 363 F.3d at 157. Now, after trial, with plaintiffs having failed to prove that the challenged statutes operated as anything more than a flat tax, we can conclude that the record permitted the district court to find even the ancillary purpose of the first Midcal requirement satisfied. As we observed in Freedom Holdings I, a flat tax, far from “shelter[ing] private parties from the Sherman Act solely in order [for the state] to share monopoly profits,” 357 F.3d at 230, would bear a sufficient nexus to policy goals of deterring smoking and raising revenue for tobacco-related health expenses to justify Parker immunity, see id. at 229. These goals are expressly articulated in the Escrow Statute, which references the “serious public health concerns” posed by cigarettes, N.Y. Pub. Health Law § 1399— nn(l); the “serious financial concerns for the state” in having to fund related healthcare programs, id. § 1399nn(2)-(4); and the MSA requirement that cigarette manufacturers “pay substantial sums to the state,” id. § 1399-nn(5). Thus, the state determined that it was in its interest “to require that [NPMs] establish a reserve fund to guarantee a source of compensation [for cigarette-related injuries caused by their products] and to prevent such manufacturers from deriving large, short-term profits and then becoming judgment-proof before liability may arise.” Id. § 1399-nn(6). There is a sufficient nexus between these identified purposes and the required escrow payments to preclude us from second-guessing the state’s choice of means to achieve its articulated policy. See Freedom Holdings I, 357 F.3d at 229; accord Massachusetts Food Ass’n v. Mass. Alcoholic Beverages Control Comm’n, 197 F.3d at 565; cf. Freedom Holdings II, 363 F.3d at 156 (questioning state’s ability to refute hypothetical antitrust challenge to statute authorizing price fixing of car washes by assertion that law would improve performance of state symphony). Plaintiffs do not dispute that the challenged statutes clearly articulate and affirmatively express state policy. Nor do they challenge the state’s ability to pass laws addressing health concerns associated with smoking. Rather, they submit that defendants cannot satisfy the ancillary explanatory purpose of Midcal because the MSA requires states to become “active participants in the cartel.” Appellants’ Br. at 68. Specifically, they contend that the NPM adjustment, which provides a substantial incentive for states to pass escrow laws, removes the challenged statutes from the scope of Parker immunity. We disagree. In Parker, the Supreme Court observed that there was “no question of the state or its municipality becoming a participant in a private agreement or combination by others for restraint of trade,” and that the challenged statute “made no contract or agreement and entered into no conspiracy in restraint of trade or to establish monopoly.” 317 U.S. at 351-52, 63 S.Ct. 307. While some courts had read this language to establish an exception to Parker immunity when private parties “conspired” with the government to pass laws restraining trade, see, e.g., Whitworth v. Perkins, 559 F.2d 378 (5th Cir.1977), the Supreme Court has since foreclosed this argument by holding that “[t]here is no such conspiracy exception,” City of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. at 374-75, 111 S.Ct. 1344 (observing that quoted language from Parker “should not be read to suggest the general proposition that even governmental regulatory action may be deemed private — and therefore subject to antitrust liability — when it is taken pursuant to a conspiracy with private parties” (emphasis in original)). The Supreme Court observed that “[t]he impracticality of such a principle is evident if, for purposes of the exception, ‘conspiracy’ means nothing more than an agreeme