COLE'S WEXFORD HOTEL, INC., on its own behalf and on behalf of all others similarly situated, Plaintiffs, v. UPMC and Highmark, Inc., Defendants, 127 F. Supp. 3d 387

OPINION CONTI, Chief Judge. I. Introduction Pending before the court in this antitrust action is a motion to dismiss the third amended complaint filed by defendant Highmark, Inc. (“Highmark”) (ECF No. 288) and a motion to dismiss the third amended complaint filed by defendant UPMC (ECF No. 290).

UPMC and High-mark argue, among other things, that the third amended complaint filed by plaintiff Cole’s Wexford Hotel, Inc. (“Cole’s Wex-ford”) fails to state any claim for relief and the class action allegations contained in the third amended complaint are insufficient as a matter of law under Federal Rule of Civil Procedure'23. Based upon the court’s review of the parties’ submissions and for the reasons set forth in this opinion, the motion to dismiss filed by Highmark (ECF No. 288) will be denied, and the motion to dismiss filed by UPMC (ECF No. 290) will be granted in part and denied in part. II.

Procedural History On December 2, 2010, Royal Mile Company, Inc., Royal Mile Asset Management, LLC, and Pamela Lang initiated this case by filing a complaint alleging

(1) UPMC and Highmark engaged in anticompetitive conduct in violation of the Sherman Act, 15 U.S.C. §§ 1, 2, and

(2) UPMC tortuously interfered with plaintiffs’ existing and prospective business relations in violation of Pennsylvania common law. (ECF No. 1.) On August 16, 2012, plaintiffs filed an amended complaint against UPMC and Highmark. (ECF No. 77.) On September 17, 2012, UPMC and Highmark each filed a motion to dismiss the amended complaint and briefs in support of their motions alleging plaintiffs failed to state a claim for relief. (ECF Nos. 77, 78, 80, 81.) On October 4, 2012, plaintiffs filed a motion seeking preliminary approval of a settlement with Highmark, certification of class, and appointment of class counsel (the “motion for preliminary approval of class settlement”). (ECF No. 88.) On October 9, 2012, plaintiffs filed the second amended complaint against UPMC and Highmark alleging UPMC and High-mark violated §§ 1 and 2 of the Sherman Act and UPMC committed tortious interference with existing and prospective business relations under Pennsylvania law. (ECF No. 90 at 55-62.) On October 23, 2012, UPMC filed a motion to dismiss the second amended complaint. (ECF No. 95.) On October 26, 2012, Highmark filed a motion to dismiss the second amended complaint. (ECF No. 98.) On November 15, 2012, Highmark filed a motion to withdraw its motion to dismiss in light of the pending motion for preliminary approval of class settlement. (ECF No. 104.) On November 16, 2012, the court granted Highmark’s motion to withdraw its motion to dismiss. (ECF No. 105.) On May 17, 2013, after a failed settlement attempt between plaintiffs and High-mark, and plaintiffs’ withdrawal of their motion for preliminary approval of class settlement and certification of the class, Highmark filed a renewed motion to dismiss the second amended complaint for failure to state a claim. (ECF No. 188.) On June 7, 2013, plaintiffs filed a response in opposition to Highmark’s motion to dismiss for failure to state a claim. (ECF No. 195.) On June 26, 2013, Highmark with leave of court filed a reply in support of its motion to dismiss. (ECF No. 207.) On September 27, 2013, after consideration of the parties’ submissions, which included supplemental briefing, and the oral argument presented to the court at a hearing held on July 1, 2013, the court issued an opinion and order granting UPMC’s and Highmark’s motions to dismiss the second amended complaint. (ECF Nos. 240, 241.) The court held the second amended complaint must be dismissed because the measure of damages set forth in the second amended complaint implicated the filed rate doctrine, and plaintiffs’ claim for tortious interference with existing and prospective contractual relations was time barred. (ECF No. 240 at 1.) The second amended complaint was dismissed without prejudice to plaintiffs seeking leave to file a third amended complaint “to the extent they [were] able to plead, with respect to the antitrust claims, a measure of damages that does not require the court to interfere with the rate-making authority of the ... [Pennsylvania Insurance Department (the “PID”)] and, with respect to the tortious interference claim against UPMC, a basis for fraudulent concealment,.” (Id. at 80.) On October 28, 2013, plaintiffs filed a motion for leave to file a third amended complaint, a brief in support of the motion, and the proposed third amended complaint attached to the motion. (ECF No. 249.) On October 29, 2013, plaintiffs filed an erratum with respect to the motion for leave to file a third amended complaint and a brief in support of the motion. (ECF Nos. 250, 251.) On November 4, 2013, Highmark filed a brief in opposition to the motion for leave to file a third amended complaint. (ECF No 253.) On November 21, 2013, UPMC filed a brief in opposition to the motion for leave to file a third amended complaint. (ECF No. 254.) On November 27, 2013, Highmark with leave of court filed a supplemental opposition to the motion for leave to file a third amended complaint. (ECF No. 256.) On January 14, 2014, plaintiffs filed a reply brief. (ECF No. 262.) On January 27, 2014, Highmark with leave of court filed a sur-reply brief in opposition to the motion for leave to file a third amended complaint. (ECF No. 266.) On February 10, 2014, UPMC with leave of court filed a sur-reply brief in opposition to the motion for leave to file a third amended complaint. (ECF No. 269.) On April 7, 2014, the court heard oral argument on the motion for leave to file a third amended complaint. (H.T. 4/7/14 (ECF No. 270).) The court ordered supplemental briefing. (H.T. 4/7/14 (ECF No. 270) at 9-10, 55-56.) On April 21, 2014, plaintiffs, Highmark, and UPMC each filed supplemental briefs. (ECF Nos. 271, 272, 273.) On May 5, 2014, Highmark and UPMC each filed a response to plaintiffs’ supplemental brief. (ECF Nos. 277, 278.) On May 13, 2014, plaintiffs filed a reply brief to Highmark’s and UPMC’s supplemental briefs. (ECF No. 280.) On May 27, 2014, UPMC with leave of court filed a sur-reply brief in support of its opposition to plaintiffs’ motion for leave to file a third amended complaint. (ECF No. 283.) On August 21, 2014, the court granted in part and denied in part the motion for leave to file a third amended complaint.

The court: —denied the motion for leave with respect to the claims asserted by the individual plaintiffs because the measure of damages asserted by those plaintiffs in the proposed third amended complaint was barred by the filed rate doctrine; —denied the motion for leave with respect to the claims asserted by the small group plaintiffs based upon damages measured by the difference between rates the small group plaintiffs paid to Highmark during the alleged UPMC-Highmark conspiracy and the rates the small group plaintiffs would have paid beginning on March 21, 2012, to Highmark’s competitors but for the UPMC-Highmark conspiracy because that measure of damages was barred by the filed rate doctrine; —granted plaintiffs leave to amend with respect to the small group plaintiffs’ claims based upon damages measured by the difference between the rates Highmark charged the small group plaintiffs during the alleged UPMC-Highmark conspiracy and the rates Highmark’s excluded and marginalized competitors who were not subject to the PID’s rate-filing requirements prior to March 21, 2012, would have charged the small group plaintiffs prior to March 21, 2012, but for the UPMC-Highmark conspiracy; —granted plaintiffs leave to amend with respect to the small group plaintiffs’ claims based upon damages measured by the difference between the rates the small group plaintiffs paid to Highmark’s subsidiary Highmark Health Insurance Company during the alleged UPMC-Highmark conspiracy and prior to March 21, 2012, and the rates it would have paid Highmark Health Insurance Company but for the .

UPMC-Highmark conspiracy; —held that under the relation back doctrine, plaintiffs were not prohibited by the statute of limitations from filing the proposed third amended complaint; —denied leave to amend with respect to plaintiffs’ tortious interference with contractual relations claim against UPMC because the claim was barred by the two-year statute of limitations under Pennsylvania law, and plaintiffs did not set forth factual allegations sufficient to toll the statute of limitations with respect to fraudulent concealment; —held plaintiffs could not recover for damages based upon their antitrust claims that were sustained prior to December 2, 2006, because recovery was barred by the four-year statute of .limitations, and plaintiffs did not set forth factual allegations sufficient to toll the statute of limitations based upon fraudulent concealment; and —struck the class action allegations with respect to the small group plaintiffs because individual questions predominated over questions of law and fact common to the class. (ECF No. 284); Royal Mile Co., Inc. v.

UPMC and Highmark, 40 F.Supp.3d 552 (W.D.Pa.2014). On October 1, 2014, Cole’s Wexford filed the third amended complaint. (ECF No. 286.) Cole’s Wexford is the only named plaintiff in the third amended complaint.

Cole’s Wexford asserts the following claims against defendants: —Count I: conspiracy in restraint of trade or commerce in violation of § 1 of the' Sherman Act against Highmark and UPMC; —Count II: conspiracy to monopolize in violation of § 2 of the Sherman Act against Highmark and UPMC; —Count III: willful acquisition and maintenance of a monopoly in the relevant market for healthcare services in violation of § 2 of the Sherman Act against UPMC; —Count IV: willful acquisition and maintenance of a monopoly in the relevant market for private health insurance in violation of § 2 of the Sherman Act against Highmark; —Count V: willful attempted monopolization in violation of § 2 of the Sherman Act against UPMC; and —Count VI: willful attempted monopolization in violation of § 2 of the Sherman Act against High-mark. (ECF No. 286.) On October 31, 2014, Highmark filed a motion to dismiss the third amended complaint and brief in support of the motion. (ECF Nos. 288, 289.) On the same day, UPMC filed a motion to dismiss the third amended complaint and a brief in support of the motion. (ECF Nos. 290, 291.) On December 4, 2014, Cole’s Wexford filed a response in opposition to each of the motions to dismiss. (ECF Nos. 294, 295.) On December 18, 2014, Highmark filed a reply in support of its motion to dismiss. (ECF No. 298.) On January 6, 2015, UPMC filed a reply in support of its motion to dismiss. (ECF No. 300.) The motions to dismiss having been fully briefed by the parties are now ripe to be decided by the court.

III. Factual Allegations in the Third Amended Complaint A.

Summary of the Allegations with respect to the UPMC-Highmark Conspiracy Cole’s Wexford is a purchaser of small group health insurance coverage from Highmark and its subsidiaries, including Highmark Health Insurance Company (“HHIC”), a for-profit entity. (ECF No. 286 ¶ 1.) Cole’s Wexford alleges it suffered damages as a result of a “sustained and orchestrated anticompetitive conspiracy” entered into by UPMC, “the area’s largest healthcare provider,” and the Highmark, “the area’s largest health insurance provider.” (Id.) According to Cole’s Wexford, UPMC possessed market power “in at least two different product markets: the market for inpatient services, and the market for tertiary and quaternary acute care inpatient services[,]” and Highmark possessed market power in “(among other potential markets) the market for health insurance and/or health care financing and administration for small group private employers.” (Id. ¶¶ 194, 208.) Cole’s Wexford alleges that UPMC and Highmark “conspired, agreed, and acted in an organized, orchestrated, and deliberate fashion to control, divide, and/or monopolize both the market for medical care and the market for health insurance in the Western Pennsylvania area,” and the conspiracy’s effects are “lasting to the present day.” (Id.) Pursuant to the conspiracy: UPMC agreed to protect Highmark’s dominant market position by, among other things, curtailing the extent to which UPMC offered its own insurance coverage that would have competed with Highmark, refusing to make its complete network available to competing health insurers, and refusing to sell its insurance subsidiary to actual or potential competitors of Highmark. (ECF No. 286 ¶ 1.) In exchange for UPMC’s promises: Highmark, among other things, agreed to stop supporting the West Penn Allegheny hospital system, UPMC’s principal competitor for the provision of health care services in Western Pennsylvania, and agreed to drop its “Community Blue” insurance coverage, which offered lower cost insurance options that used West Penn Allegheny’s network (Id.) Cole’s Wexford alleges the result of the conspiracy was the exclusion of competing insurers from the relevant health insurance marketplace. (Id.) According to Cole’s Wexford, the exclusion of competing insurers caused it economic harm.

Cole’s Wexford explains: Highmark unilaterally transferred small group plan subscribers from the nonprofit Highmark, Inc. to a for-profit subsidiary, Highmark Health Insurance Co. (“HHIC”) beginning on July 1, 2010 in order to avoid being constrained by the Pennsylvania Insurance Department’s (“PID”) oversight authority. This migration enabled Highmark, through HHIC, to charge supracompetitive prices for small group plans until March 21, 2012, when these rates became subject to the PID’s regulatory jurisdiction.

In the absence of the conspiracy, High-mark would not have been able to impose inflated, supracompetitive premiums on its small group plan subscribers during this period. Highmark’s migration of customers began with plans that were due for renewal on July 1, 2010. Plaintiff Cole’s [Wexford] was among these customers.

Cole’s [Wexford] renewed its Highmark plan with Highmark Health Insurance Co. on July 1, 2010. (Id. ¶¶ 2, 241.) In other words, “[o]nce Highmark was free of both meaningful competition (as a result of its conspiracy with UPMC) and regulatory scrutiny (as a result of its migration strategy), it was able to charge supracompetitive premiums to its small group customers.” (IdA 242.) Cole’s Wexford was harmed by the conspiracy because “[b]ut for the conspiracy, these purchasers of small group plans would have paid lower premiums to High-mark Health Insurance Co. or other High-mark entities whose small group premium amounts were not subject to any rate filing requirement.” (Id.) B.

The Relevant Geographic Market Cole’s Wexford defines the relevant geographic market as: the 29-county area of Western Pennsylvania, specifically Allegheny, Armstrong, Beaver, Bedford, Blair, Butler, Cambria, Cameron, Centre, Clarion, Clearfield, Crawford, Elk, Erie, Fayette, Forest, Greene, Huntingdon, Indiana, Jefferson, Lawrence, McKean, Mercer, Potter, Somerset, Venango, Warren, Washington, and Westmoreland counties.... (ECF No. 286 ¶ 195.) According to Cole’s Wexford, Allegheny County is “the most populous county within the Relevant Geographic Market” and “[approximately 95% of Allegheny County residents stay within the county for acute inpatient care.

There is accordingly a clear and unequivocal demand by residents to access care locally.” (Id. ¶¶ 197, 204.) IV. Standard of Review A motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, when considering a' motion to dismiss, the court accepts as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v.

Higgins, 281 F.3d 383, 388 (3d Cir.2002). While a complaint does not need detailed factual allegations to survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, a complaint must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v.

Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). “Factual allegations must be enough to raise a right to relief above the speculative level” and “sufficient to state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 667, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully... .Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Iqbal, 556 U.S. at 667, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). Two working principles underlie Twombly.

Iqbal, 556 U.S. at 667, 129 S.Ct. 1937. First, with respect to mere conclusory statements, a court need not accept as true all the allegations contained in a complaint. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Second, to survive a motion to dismiss, a claim must state a plausible claim for relief.

Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 5.Ct. 1955). “Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. “But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’” Id. (quoting Fed.R.Civ.P. 8(a)(2)).

A court considering a motion to dismiss may begin by identifying pleadings that are not entitled to the assumption of truth because they are mere conclusions. While legal conclusions can provide the complaint’s framework, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Iqbal, 556 U.S. at 664, 129 S.Ct. 1937. V. Discussion The arguments raised by Highmark and UPMC in support of their motions to dismiss will be addressed below. A.

Highmark’s Arguments 1. Highmark argues Cole’s Wexford Failed to Plead Injury in Fact Highmark argues Cole’s Wexford’s claims should be dismissed in their entirety because Cole’s Wexford in the third amended complaint did not plead it suffered injury in fact caused by the alleged UPMC-Highmark conspiracy. In other words, Highmark asserts Cole’s Wexford failed to plead factual allegations showing how it was injured by the alleged UPMC-Highmark conspiracy.

Specifically, High-mark notes Cole’s Wexford did not allege whether but for the conspiracy it would have stayed with HHIC or switched to one of Highmark’s excluded or marginalized insurance competitors. Cole’s Wexford argues that it plausibly alleged that it overpaid HHIC for health insurance because of the alleged UPMC-Highmark conspiracy.

According to Cole’s Wexford, with respect to pleading injury in fact, it is of no consequence whether but for the alleged UPMC-Highmark conspiracy it would have paid a lower rate for health insurance by continuing to pay HHIC or switching to one of Highmark’s allegedly excluded competitors; rather, it is HHIC’s overcharge to Cole’s Wexford in the first instance that constitutes injury in fact in this case. The Supreme Court has defined “injury in fact” for the purpose of constitutional standing as: “an invasion of a legally protected interest which is (

a) concrete and particularized ... and (b) ‘actual or imminent, not conjectural or hypothetical[.]’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)). The Third Circuit Court of Appeals has recognized that with respect to a plaintiffs pleading burden, “[i]njury-in-faet is not Mount Everest.” Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 293 (3d Cir.2005). “The contours of the injury-in-fact requirement, while not precisely defined, are very generous.

Once a plaintiff has alleged some specific, ‘identifiable trifle’ of injury ... the requirement of a.constitutionally adequate stake in the controversy is satisfied.” Bowman v. Wilson, 672 F.2d 1145, 1151 (3d Cir.1982) (quoting United States v. SCRAP, 412 U.S. 669, 686-89 n. 14, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973)). “Monetary harm is a classic form of injury-in-fact[, and] is often assumed without discussion.” Danvers, 432 F.3d at 293 (citing Adams v.

Watson, 10 F.3d 915, 920-25 n. 13 (1st Cir.1993)). “The obvious fact that [a plaintiff is] forced to pay money it otherwise would have kept for itself [is] sufficient to confer

Article III standing.” Danvers, 432 F.3d at 293. A plaintiff may satisfy its pleading burden in this regard by alleging it was overcharged for a product because of the defendant’s anti-competitive conduct. See In re Processed Egg Prods. Antitrust Litig., 851 F.Supp.2d 867, 887 (E.D.Pa.2012) (holding plaintiffs sufficiently alleged they suffered injury in fact by alleging they personally “paid artificially inflated prices for eggs because of the Defendants’ conspiracy”); D.R. Ward Constr. Co. v.

Rohm and Haas Co., 470 F.Supp.2d 485, 492-93 (E.D.Pa.2006) (holding plaintiffs sufficiently alleged they suffered injury in fact by alleging they “paid inflated prices for products with plastics additives due to an overcharge on plastics additives”); see also Perez v. State Farm Mut. Auto. Ins.

Co., 319 Fed.Appx. 615, 617 (9th Cir.2009) (“The injury alleged— anticompetitive price's charged to all policyholders regardless of whether any particular insured ever has a repair need — is sufficient to confer constitutional standing: the alleged overcharges are a concrete, particularized, and actual injury-in-fact that is fairly traceable to the conduct complained of, and is likely to be redressed by a favorable decision.”); In re Foreign Exch. Benchmark Rates Antitrust Litig., 74 F.Supp.3d 581, 595 (S.D.N.Y.2015) (“The U.S.

Complaint’s plausible allegations about an overarching conspiracy among horizontal competitors to fix prices that resulted in Plaintiffs paying overcharges satisfy the injury-in-fact requirement at the pleading stage.”). Here, Cole’s Wexford sufficiently alleges it suffered monetary harm, i.e., injury in fact, in the form of overcharges it paid for health insurance caused by the allegedly anticompetitive conspiracy entered into between UPMC and Highmark. (ECF No. 286 ¶ 1.) Cole’s Wexford, in

summary, alleges: —UPMC and Highmark had market power in the relevant markets (ECF No. 286 ¶¶ 190-227); —UPMC and Highmark entered into an anticompetitive conspiracy to protect each other’s market power, i.e., UPMC “refus[ed] to contract on reasonable terms with any competing health insurer or to sell its health insurance affiliate to any competing health insurer,” and Highmark “withdr[ew] its commitment to and refuse[d] any significant financial support or assistance for West Penn Allegheny” (Id. ¶¶ 21, 22); —the alleged UPMC-Highmark conspiracy “created steep barriers to entry that prevented other insurers from entering the market;” indeed, “[b]eeause of [the] long-lasting effects of the conspiracy, potential competitors such as United and Aetna have struggled, and continue to struggle, to become viable competitors in Western Pennsylvania” (Id. ¶ 229); —HHIC—without threat of competition — -was able to charge Cole’s Wex-ford “supracompeti-tive premiums” for health insurance (Id. ¶ 242); and —Cole’s Wexford actually “paid artificially inflated, supracompeti-tive premiums” to HHIC because it was a “captive customer” of Highmark and its subsidiaries and did not have any other “viable alternatives to Highmark’s coverage” because of the UPMC-Highmark conspiracy (Id. ¶¶ 116, 230, 242).

Based upon the allegations contained in the third amended complaint, Cole’s Wex-ford has alleged it suffered an actual, concrete, and particularized invasion of a legally protected interest, i.e., it was forced to pay and actually did pay the supracom-petitive premiums charged by HHIC for health insurance as a result of the UPMC-Highmark conspiracy.

Highmark argues, however, that Cole’s Wexford failed to adequately plead injury in fact because it did not allege whether but for the alleged UPMC-High-mark conspiracy it would have stayed with HHIC or switched to one of Highmark’s insurance competitors, and Cole’s Wexford asserts that its only measure of damages is the difference between the rates it paid to HHIC and the rates it would have paid HHIC but for the alleged UPMC-High-mark conspiracy. Highmark’s argument — at this stage of the litigation — is not persuasive.

Cole’s Wexford sufficiently alleged it suffered injury, i.e., it suffered monetary harm because it paid HHIC su-pracompetitive rates for health insurance. The allegations in the third amended complaint-which the court must accept as true-are sufficient to establish that regardless whether Cole’s Wexford would have stayed with HHIC or switched to one of High-mark’s insurance competitors not subject to PID oversight, it would have paid lower rates in a freely competitive market. Duraco Prods., Inc. v. Joy Plastic Enters.

Ltd., 822 F.Supp. 1202, 1211 (W.D.Pa.1993) (“[T]he public has an interest in a healthy, competitive market which results in lower prices for popular goods.”); Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 488 (2d Cir.2004) (“Competition, which fosters innovation and tends to lower prices for consumers, directly pits one producer against another.”). In other words, based upon the allegations in the third amended complaint, prices charged by either HHIC or Highmark’s competitors not subject to PID oversight would be lower but for the alleged UPMC-Highmark conspiracy.

Cole’s Wexford, therefore, set forth factual allegations sufficient to plausibly allege it suffered injury in fact in the form of monetary harm, i.e., overcharges for health insurance, in this case. Highmark cited three decisions in support of its argument that Cole’s Wexford failed to plead injury in fact — National ATM Council, Inc. v. Visa Inc., 922 F.Supp.2d 73 (D.D.C.2013); Dominguez v. UAL Corp., 666 F.3d 1359 (D.C.Cir.2012); and In re Ductile Iron Pipe Fittings Indirect Purchaser Antitrust Litigation, Civ. Action No. 12-169, 2013 WL 5503308 (D.N.J.

Oct. 2, 2013). (ECF No. 289 at 4, 7.) None of those decisions,- however, supports the argument that Cole’s Wexford was required to allege which health insurance option it would have chosen absent the alleged UPMC-Highmark conspiracy. In National ATM, the plaintiffs in three separate antitrust actions claimed “that the [automatic teller machine (“ATM”)] access fee pricing requirements that [the defendants] ... imposed on banks and ATM operators violate[d]” the antitrust laws. National ATM, 922 F.Supp.2d at 75.

The access fee pricing requirements imposed by the defendants provided that an ATM operator could not charge a consumer whose ATM card only operated on a network of one of the defendants a higher access fee than a consumer whose ATM card operated on another network. Id. at 75. The plaintiffs, ATM operators and consumers, argued the access fee pricing requirements harmed competition and resulted in the plaintiffs paying supracom-petitive access fees. Id.

The court addressed whether the plaintiffs sufficiently alleged antitrust standing, i.e., that they suffered an injury in fact and that the injury is the kind of injury the antitrust laws was intended to prevent. Id. at 80-81. The plaintiffs in National ATM argued that because they set forth factual allegations in the complaint about the defendants’ anticompetitive conduct, they “more than satisfied the requirements for pleading antitrust injury in fact.” National ATM, 922 F.Supp.2d at 82-83.

The court rejected the plaintiffs’ argument, explaining: “a ‘naked assertion’ of antitrust injury ... is not enough; an antitrust claimant must put forth factual ‘allegations plausibly suggesting (not merely consistent with)’ antitrust injury.” Id. (quoting Nic-Sand Inc. v. 3M Co., 507 F.3d 442, 451 (6th Cir.2007)). The court concluded that in each of the three complaints there existed insufficient allegations with respect to how each plaintiff was injured by the defendants’ access fee pricing requirements.

The court commented that the complaints contained conclusory allegations and did not provide a “link between the alleged harm to competition and the plaintiffs pocketbook.” Id. at 86. The court explained: [N]one of the complaints does anything more than make the “but for” claim. The complaints do not specify what market is being restrained, how it is supposed to work, how it was adversely affected, and how that circumstance injured the plaintiffs. A critical problem is that plaintiffs do not make clear who pays whom in these transactions.

They do not explain what the ATM operators’ costs might be or how they are tied to the pricing of the fees, and there are no facts in the complaints that support a conclusion that prices would be lower if the restrictions at issue were lifted. Id. at 89. Based upon the foregoing— along with the conclusion that the plaintiffs failed to plausibly allege the existence of a conspiracy — the court dismissed the complaints without prejudice. Id. at 96.

In this case, the third amended complaint contains specific details about the alleged UPMC-Highmark conspiracy and how the conspiracy enabled Highmark and its subsidiary, HHIC, to charge supraeom-petitive rates to Cole’s Wexford.

Cole’s Wexford plausibly alleged that — pursuant to the UPMC-Highmark conspiracy— UPMC refused to contract with High-mark’s insurance competitors in exchange for Highmark working to “hobble” UPMC’s “sole viable competitor, West Penn Allegheny.” (ECF No. 286 ¶ 24.) Highmark’s competitors as a result were marginalized in or excluded from the health insurance market. (Id.) The third amended complaint contains allegations that Highmark and its subsidiaries were able to charge Cole’s Wexford supracom-petitive prices for health insurance without the threat of competition.

Cole’s Wexford alleges UPMC’s and Highmark’s revenues “soared” after they entered into the conspiracy and the premium increases “were well above national averages.” (Id. ¶ 109.) These allegations — unlike the allegations in National ATM — are sufficient to plausibly allege how the alleged UPMC-High-mark conspiracy caused Cole’s Wexford injury in fact, i.e., monetary harm in the form of overcharges for health insurance. National ATM does not support High-mark’s argument that Cole’s Wexford did not plausibly allege injury in fact.

In In re Ductile, some — but not all— products purchased by the plaintiffs were subject to an allegedly anticompetitive scheme by the defendants. Ductile, 2013 WL 5503308, at *18-19. The court dismissed some of the claims against the defendants asserted by certain plaintiffs because those plaintiffs did not specify in the complaint whether the price of the products they purchased was affected by the allegedly anticompetitive scheme. Id. at *19.

The court also dismissed claims against other plaintiffs who alleged they purchased products from the defendants but did not allege that they purchased them during the existence of the price-fixing conspiracy alleged in the complaint. Id. at *20. As discussed above, Cole’s Wexford in the third amended complaint provided detail with respect to how the alleged UPMC-Highmark conspiracy worked and caused it to pay supracompeti-tive prices for health insurance.

The issues articulated in In re Ductile about whether the plaintiffs set forth factual allegations sufficient for the court to plausibly infer that they were actually injured by the anticompetitive conduct alleged in the complaint do not exist in this case. Based upon the allegations in the complaint— which this court must accept as true — all rates for health insurance would have been lower but for the alleged UPMC-High-mark conspiracy.

Cole’s Wexford is not required at this stage to indicate whether in the but-for world it would have paid a lower rate to HHIC or one of Highmark’s excluded insurance competitors not subject to PID oversight. Cole’s Wexford’s well-plead allegation that it was injured by overpaying for health insurance as a result of UPMC’s and Highmark’s allegedly anti-competitive conduct is sufficient to withstand Highmark’s motion to dismiss. In Dominguez, the plaintiff brought a class action antitrust lawsuit against an airline challenging the airline’s policy prohibiting ticket resale. Dominguez, 666 F.3d at 1360.

The district court determined the airline’s policy was lawful and granted

summary judgment in favor of the airline. Id. at 1361. The plaintiff appealed, and the Court of Appeals for the Federal Circuit determined the plaintiffs lawsuit should have been dismissed because he lacked standing under

Article III, noting his claimed injury was “too speculative.” Id. The court of appeals commented that the case was at the

summary judgment stage so the plaintiff could not rest on “mere allegations” to prove he had standing; rather, he had to “establish each element of standing by putting forth ‘specific facts.’ ” Id. (quoting Lujan, 504 U.S. at 561, 112 S.Ct. 2130). The plaintiffs theory of recovery was that the airline’s prohibition on ticket resale prevented him from purchasing a less expensive airline ticket because it foreclosed the emergence of a second market of ticket resellers. Id. at 1362.

The court concluded that based upon the evidence presented by the plaintiff, a reasonable jury could not find that he suffered injury in fact. The plaintiff in Dominguez relied upon an expert who determined that, based upon a consumer survey, “a high percentage of respondents would consider using a feature allowing them to legally sell or give away airline tickets they are unable to use.” Id. at 1363.

The consumer survey did not, however, consider the costs associated with running a secondary market, the itinerary change fees the airline currently imposed upon its customers, or the other costs the airline would have to absorb to change its reservation system. The court determined that the plaintiff could not rely upon the expert and consumer survey to establish injury in fact in that case because the consumer survey “failed to present an accurate picture of the prices that would be negotiated in [the relevant] market.” Id. at 1364.

The court commented that the consumer survey did not “speak to the relevant question of whether secondary market prices would have been lower than what [the plaintiff] paid[.]” Id. The consumer survey compared flights similar to the plaintiffs flight without the imposition of the policy prohibiting transfers. The plaintiff had received a discount on his airline ticket because he purchased tickets for three flights at one time. The court explained: The survey claims secondary market prices would be lower than prices without a package discount, but [the plaintiff] did not pay that price.

Even if [the expert’s] survey shows that some [airline] customers were injured by the No Transfer Policy — and for the reasons already discussed that seems uncertain at best — it would still be speculative to think the survey shows [the plaintiff] was one of them. Id. The court also noted that the data offered by the plaintiff did not account for the airline’s pricing strategy based upon the policy prohibiting transfers and how the pricing strategy would change without the policy. The court vacated the decision of the district court and remanded the case for dismissal based upon lack of jurisdiction.

The court concluded no reasonable juror could find the plaintiff suffered injury in fact based upon the evidence presented, which “pile[d] speculation atop speculation^]” Id. Here, unlike Dominguez, this case is only in the pleadings stage, and, as discussed above, Cole’s Wexford’s allegations with respect to the alleged UPMC-High-mark conspiracy causing it to pay overcharges for health insurance are sufficient to satisfy the injury in fact requirement of

Article III standing. The issue in Dominguez concerned whether the plaintiff adduced evidence sufficient for a reasonable jury to find that he would have paid a lower price for his airline ticket absent the defendant’s alleged antitrust violation, i.e., whether the plaintiff showed he was injured by the defendant’s allegedly anti-competitive conduct. Here, Highmark does not argue that the third amended complaint contains insufficient factual allegations with respect to whether Cole’s Wexford would have paid a lower rate for health insurance in a competitive market.

Highmark’s argument concerns to whom Cole’s Wexford would have paid those lower rates. Highmark does not set forth any authority indicating that because Cole’s Wexford did not allege to whom it would have paid those rates it failed to allege it suffered injury in fact. Highmark may raise this issue in a motion for

summary judgment if Cole’s Wexford’s is not able to adduce evidence sufficient for a reasonable jury to conclude the alleged UPMC-High-mark conspiracy caused it to pay supra-competitive prices for health insurance. At this stage, however, Highmark’s motion to dismiss must be denied with respect to its argument that Cole’s Wexford failed to set forth factual allegations sufficient to plausibly allege it suffered injury in fact. 2.

Highmark Argues the Class Allegations Should be Stricken from the Third Amended Complaint Highmark argues that the court should strike Cole’s Wexford class action allegations because “it is clear on the face of the complaint that individualized inquiry regarding issues of injury in fact and damages would predominate over any common issues in this case.” (ECF No. 289 at 12.) Cole’s Wexford in response argues that Highmark misreads the complaint because Cole’s Wexford in the third amended complaint sets forth a single measure of damages based upon Cole’s Wexford and class members overpaying HHIC for health insurance premiums as a result of the alleged UPMC-Highmark conspiracy. (ECF No. 294 at 9.) Cole’s Wexford asserts that the single measure of damages set forth in the third amended complaint is the difference between the prices actually paid to HHIC during the relevant time-frame and the prices Cole’s Wexford and class members would have paid to HHIC but for the alleged UPMC-Highmark conspiracy. (Id. at 10.) Cole’s Wexford also asserts that “it is ordinarily procedurally inappropriate to address class certification issues at the pleading stage because ‘the Rule 23 requirements differ in kind from legal rulings under Rule 12(b)(6).’ ” (ECF No. 294 at 11 (quoting In re Cmty.

Bank of N. Va., 622 F.3d 275, 303 (3d Cir.2010)).) The legal principles and arguments raised by Highmark and Cole’s Wexford will be addressed below. a. Applicable Legal Standard The Supreme Court of the United States has recognized that with respect to class certification under Federal Rule of Civil Procedure 23, “[s]ometimes the issues are plain enough from the pleadings to determine whether” class certification is appropriate in a given case. Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).

The Third Circuit Court of Appeals has explained that in “rare” cases, “where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met,” a court may strike class allegations contained in a complaint. Landsman & Funk PC v. Skinder-Strauss Assocs., 640 F.3d 72, 93 n. 30 (3d Cir.2011) (citing Rios v. State Farm Fire & Cas. Co., 469 F.Supp.2d 727, 740 (S.D.Iowa 2007)).

The court of appeals in Landsman noted, however, that in all other cases — the majority of cases — “[t]o determine if the requirements of Rule 23 have been satisfied, a district court must conduct a ‘rigorous analysis.’ ” Landsman, 640 F.3d at 93 (quoting In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 309 (3d Cir.2008)). The court of appeals explained: In [conducting, a rigorous analysis], a “court may ‘delve beyond the pleadings to determine whether the requirements for class certification are satisfied.’ ” Id. at 316 (quoting Newton v.

Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 167 (3d Cir.2001)). Particularly when a court considers predominance, it may have to venture into the territory of a claim’s merits and evaluate the nature of the evidence. Id. at 310-11. In most cases, some level of discovery is essential to such an evaluation. In Weiss v.

Regal Collections, 385 F.3d 337 (3d Cir.2004), we emphasized the importance of discovery as part of the class certification process. “It seems appropriate,” we said, “that the class action process should be able to ‘play out’ according to the directives of Rule 23 and should permit due deliberation by the parties and the court on the class certification issues.” Weiss, 385 F.3d at 347-48 (footnote omitted). Accordingly, “[allowing time for limited discovery supporting certification motions may ... be necessary for sound judicial administration.” Id. at 347 n. 17.

These concerns were the basis for setting down a “rigorous analysis” requirement in Hydrogen Peroxide, where we recognized that changes in Rule 23 reflected the need “for a thorough evaluation of the Rule 23 factors.” Hydrogen Peroxide, 552 F.3d at 318. Landsman, 640 F.3d at 93. The court must be cognizant when evaluating a defendant’s motion to strike class allegations from a complaint that “ ‘[a]n order granting a motion to strike class allegations is tantamount to a denial of class certification after a motion to certify.’ ” Smith v. Merial Ltd., Civ. Action No. 10-439, 2012 WL 2020361, at *6 (D.N.J.

June 5, 2012) (quoting 1 Joseph M. McLaughlin, McLaughlin on Class Actions § 3:4 (10th ed.2013)). “[T]he burden remains with the party seeking class certification regardless who moves the court to make the determination.” Blihovde v. St. Croix Cnty. Wis., 219 F.R.D. 607, 614 (W.D.Wis.2003). Regardless whether the defendant files a motion to strike class allegations pursuant to Federal Rule of Civil Procedure 12(

f) based upon insufficient class allegations in a complaint, or a plaintiff files a motion to certify a class pursuant to Rule 23 based upon a more fully developed record, the plaintiff has the burden to prove that the requirements set forth in Rule 23 are met, and the court must accordingly apply Rule 23. In re Cmty. Bank of N. Va., 622 F.3d at 302 n. 19; 1 Joseph M. McLaughlin, McLaughlin on Class Actions § 3:4 (10th ed.2013). It would be error for a court to apply the Rule 12(b)(6) plausibility standard set forth in Twombly and Iqbal to “dismiss” class action allegations in a complaint. In re Cmty. Bank of N.

Va., 622 F.3d at 302 n. 19. The Court of Appeals for the Third Circuit recognized in In re Hydrogen Peroxide, that “the requirements set out in Rule 23 are not mere pleading rules.” In re Hydrogen Peroxide, 552 F.3d at 316. The court of appeals, quoting a decision from the Court of Appeals for the Seventh Circuit, explained: “The reason why judges accept a complaint’s factual allegations when ruling on motions to dismiss under Rule 12(b)(6) is that a motion to dismiss tests the legal sufficiency of a pleading. Its factual sufficiency will be tested later-by a motion for

summary judgment under Rule 56, and if necessary by trial. By contrast, an order certifying a class usually is the district judge’s last word on the subject; there is no later test of the decision’s factual premises (and, if the case is settled, there could not be such an examination even if the district judge viewed the certification as provisional).” Id. at 316 n. 15 (quoting Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675-76 (7th Cir.2001)). Based upon the foregoing discussion, Highmark may challenge Cole’s Wexfrod’s class action allegations at this stage of the proceedings, i.e., the pleading stage.

If this is one of the “rare” cases in which it is “plain enough from the pleadings” that Cole’s Wexford cannot sustain its burden to show class treatment is appropriate in this case under Rule 23, Cole’s Wexford will not be permitted to proceed with its class action allegations and they will be stricken from the third amended complaint. Gen. Tel. Co., 457 U.S. at 160, 102 S.Ct. 2364; Landsman, 640 F.3d at 93 n. 30. b. Rule 23 “The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’ ” Comcast Corp. v.

Behrend, — U.S. -, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013). To be certified, a class must satisfy the four requirements of Federal Rule of Civil Procedure 23(a): (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Fed.R.CivP. 23(a). With respect to commonality, a court must assess the susceptibility of plaintiffs’ entire claim to class treatment. In Wal-Mart Stores, Inc. v.

Dukes, 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011), the Court held commonality includes proof that a classwide proceeding will generate “common answers apt to drive the resolution of the litigation.” Walr-Mart, 131 S.Ct. at 2551. The Court explained that common contentions central to the classwide issues should be resolved “in one stroke.” Id. The lack of a single stroke resolution underscores the predominance of individual issues in a case that warrants the denial of class certification. Yarger v. ING Bank, fsb, 285 F.R.D. 308, 327 (D.Del.2012).

The class — in addition to satisfying the four requirements set forth in Rule 23(a)— must fit within one of the three categories of class actions set forth in Federal Rule of Civil Procedure 23(b). In re Cmty. Bank of N. Va., 418 F.3d 277, 302 (3d Cir.2005). Rule 23(

b) provides: (

b) Types of Class Actions. A class action may be maintained if Rule 23(

a) is satisfied and if: (1) prosecuting separate actions by or against individual class members would create a risk of: (

A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (

B) adjudications with respect to individual class members that, as a practical matter, would be disposi-tive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

The matters pertinent to these findings include: (

A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (

B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (

C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (

D) the likely difficulties in managing a class action. Fed.R.Civ.P. 23(b). To determine whether to certify a class, the court must be satisfied “after a rigorous analysis” that all the requirements for class certification are met. Gen. Tel. Co., 457 U.S. at 160, 102 S.Ct. 2364. The rigorous analysis requires the court to make explicit findings; “ ‘the requirements of Rule 23 must be met, not just supported by some evidence.’ ” Id. at 320 (quoting In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 33 (2d Cir.2006)). The proponent of class certification has the burden of proving each of the prerequisites of a class action under Rule 23(

a) and that the class fits within one of the three categories of class actions set forth in Rule 23(b); indeed, “[a] party’s assurance to the court that it intends or plans to meet the [Rule 23] requirements is insufficient.” In re Hydrogen Peroxide, 552 F.3d at 316 n. 14, 317 (citing Unger v. Amedisys, 401 F.3d 316, 320 (5th Cir.2005)); Hayes v. Wal-Mart Stores, Inc., 725 F.3d 349, 354 (3d Cir.2013) (“It is plaintiffs burden to show that a class action is a proper vehicle for this lawsuit.”).

It may not be necessary for a plaintiff to establish the merits of its case at the certification stage, but, if establishing the merits is necessary to determine whether class certification requirements are met, the court may have to conduct a “ ‘preliminary inquiry into the merits.’ ” In re Hydrogen Peroxide, 552 F.3d at 317 (quoting Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 168, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974)).

The court of appeals in In re Hydrogen Peroxide explained how a court should handle “[a]n overlap between a class certification requirement and the merits of a claim” as follows: Because the decision whether to certify a class “requires a thorough examination of the factual and legal allegations,” id. at 166, the court’s rigorous analysis may include a “preliminary inquiry into the merits,” id. at 168, and the court may “consider the substantive elements of the plaintiffs’ case in order to envision the form that a trial on those issues would take,” id. at 166 (quoting 5 Moore’s Federal Practice § 23.46[4]) (quotation marks omitted).

See id. at 168 (“In reviewing a motion for class certification, a preliminary inquiry into the merits is sometimes necessary to determine whether the alleged claims can be properly resolved as a class action.”). A contested requirement is not forfeited in favor of the party seeking certification merely because it is similar or even identical to one normally decided by a trier of fact. Although the district court’s findings for the purpose of class certification are conclusive on that topic, they do not bind the fact-finder on the merits.

In re Hydrogen Peroxide, 552 F.3d at 317-18. “ ‘A critical need’ of the trial court at certification ‘is to determine how the case will be tried, ... including how the class is to be ascertained.’ ” Carrera v. Bayer Corp., 727 F.3d 300, 307 (3d Cir.2013) (quoting In re Hydrogen Peroxide, 552 F.3d at 319). A plaintiff “[a]s ‘an essential prerequisite’ to class certification ... must show by a preponderance of the evidence that the class is ascertainable.” Hayes, 725 F.3d at 354 (citing Marcus v. BMW of N.

Am., LLC, 687 F.3d 583, 592 (3d Cir.2012); In re Hydrogen Peroxide, 552 F.3d at 320). “[AJscertainability is important because it ‘eliminates serious administrative burdens ... by insisting on the easy identification of class members’; allows for the best notice practicable, and thereby protects absent class members; and protects defendants by clearly identifying the individuals to be bound by the final judgment.” Hayes, 725 F.3d at 354-54 (citing Marcus, 687 F.3d at 593). “If a class cannot be ascertained in an economical and ‘administratively feasible’ manner ... significant benefits of a class action are lost.” Carrera, 727 F.3d at 307 (quoting Marcus, 687 F.3d at 593-94).

The court of appeals in Hayes explained the “two important elements” of ascertainability as follows: First, the class must be defined with reference to objective criteria. Id. Second, there must be a reliable and administratively feasible mechanism for determining whether putative class members fall within the class definition. Id. at 593-94. We explained that “[i]f class members are impossible to identify without extensive and individualized fact-finding or ‘mini-trials,’ then a class action is inappropriate.” Id. at 593; see also William B.

Rubenstein, Newberg on Class Actions § 3:3 (5th ed.2011) (“Administrative feasibility means that identifying class members is a manageable process that does not require much, if any, individual factual inquiry.”). We noted that other courts have gone so far as to hold “that where nothing in company databases shows or could show whether individuals should be included in the proposed class, the class definition fails.” Marcus, 687 F.3d at 593.

Hayes, 725 F.3d at 355. “[T]o satisfy as-certainability as it relates to proof of class membership, the plaintiff must demonstrate his purported method for ascertaining class members is reliable and administratively feasible, and permits a defendant to challenge the evidence used to prove class membership.” Carrera, 727 F.3d at 307. A plaintiff cannot meet its burden to show the class is administratively ascertainable “if individualized fact-finding or mini-trials will be required to prove class membership.” Carrera, 727 F.3d at 307.

The requirement of ascertainability protects the due process rights of defendants in class action lawsuits. Carrera, 727 F.3d at 307. The court of appeals in Carrera explained this concept as follows: A defendant in a class action has a due process right to raise individual challenges and defenses to claims, and a class action cannot be certified in a way that eviscerates this right or masks individual issues. See McLaughlin v. Am.

Tobacco Co., 522 F.3d 215, 231-32 (2d Cir.2008) (rejecting a “fluid recovery” method of determining individual damages, in which aggregate damages would be based on estimates of the number of defrauded class members and.their average loss), abrogated on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008); see also Dukes, 131 S.Ct. at 2561 (rejecting a method of class certification in which a sample set of class members would be used to extrapolate average damages).

A defendant has a similar, if not the same, due process right to challenge the proof used to demonstrate class membership as it does to challenge the elements of a plaintiffs claim. See Marcus, 687 F.3d at 594 (“Forcing BMW and Bridgestone to accept as true absent persons’ declarations that they are members of the class, without further indicia of reliability, would have serious due process implications.”). Ascertainability provides due process by requiring that a defen- ■ dant be able to test the reliability of the evidence submitted to prove class membership. Id.

In Hayes, the district court granted the plaintiffs motion for class certification, and the defendant on appeal to the Third Circuit Court of Appeals contested class , certification. Id. at 351. The court of appeals remanded the case based upon Marcus v. BMW of N. Am., LLC, 687 F.3d 583 (3d Cir.2012), which was decided after the district court in Hayes granted the plaintiffs motion for class certification, and “thoroughly explored Rule 23’s class definition, ascertainability, and numerosity requirements,” which were in issue in that case. Id. at 351-52.

The court of appeals in Hayes explained its decision in Marcus with respect to ascertainability as follows: The plaintiffs in Marcus sued BMW and Bridgestone for selling allegedly defective run-flat tires (RFTs). Id. at 588. The class definition sought to capture owners and lessees who purchased or leased new BMWs with original-equipment Bridgestone RFTs from BMW dealerships in New Jersey and whose tires had gone flat and been replaced. Id. at 592. We found the proposed class raised “serious ascertainability issues.” Id. at 593.

In particular, lease and purchase records from BMW dealerships were over-inclusive because they did not document the brand of tire on each car leased or sold. Id. And not all owners and lessees took their vehicles back to a BMW dealer to have their tires replaced — hence repair records were under-inclusive. Id. at 594.

Remanding the case to the district court, we said: If Marcus attempts to certify a class on remand, the District Court — adjusting the class definition as needed — must resolve the critical issue of whether the defendants’ records can ascertain class members and, if not, whether there is a reliable, administratively feasible alternative. We caution, however, against approving a method that would amount to no more than ascertaining by potential class members’ say so.

For example, simply having potential class members submit affidavits that their Bridge-stone RFTs have gone flat and been replaced may not be “proper or just.” ... Forcing BMW and Bridgestone to accept as true absent persons’ declarations that they are members of the class, without further indicia of reliability, would have serious due process implications. Id. (citation omitted) (quoting Xavier v. Philip Morris USA Inc., 787 F.Supp.2d 1075, 1090 (N.D.Cal.2011)). Hayes, 725 F.3d at 356.

The court of appeals in Hayes remanded the case because the district court, which granted class certification, “did not have the benefit of Marcus’s guidance,” and “did not consider whether it would be administratively feasible to ascertain class members.” Id. at 355. In granting the plaintiffs motion for class certification, the district court held that the lack of administrative records from which the plaintiffs proposed class could be ascertained was not a barrier to class certification. Id.

The court of appeals explained, however, that “Rule 23’s requirements that the class be administratively feasible to ascertain and sufficiently numerous to warrant class action treatment cannot be relaxed or adjusted on the basis of [the plaintiffs] assertion that [the defendant’s] records are of no help to him.” Id. at 356.

The court of appeals held that in light of the district court’s finding that the defendant did not have administrative records from which the putative class could be ascertained, “to be successful on remand, plaintiff must offer some reliable and administratively feasible alternative that would permit the court to” ascertain the class. Id. The court of appeals cautioned, however, that plaintiffs “petition for class certification will flounder if the only proof of class membership is the say — so of putative class members or if ascertaining the class requires extensive and individualized fact-finding.” Id. c.

Analysis i. The court’s opinion dated August 21, 2014 Highmark argues that based upon this court’s ruling in the opinion dated August 21, 2014, the class action allegations should be stricken from the third amended complaint. To analyze whether Highmark’s argument is meritorious, the court must first consider its decision dated August 21, 2014.

In the proposed third amended complaint at issue in the court’s opinion dated August 21, 2014, plaintiffs set forth two measures of damages for the putative class of small group plaintiffs: (1) the difference between the rates the small group plaintiffs paid Highmark during the alleged UPMC-Highmark conspiracy and the rates the small groups plaintiffs would have paid Highmark’s excluded and marginalized competitors not subject to the PID’s rate-filing requirements prior to March 21, 2012, but for the alleged UPMC-Highmark conspiracy; and (2) the difference between the rates the small group plaintiffs that Highmark switched to HHIC paid to HHIC during the alleged UPMC-Highmark conspiracy and the rates the small group plaintiffs that High-mark switched to HHIC would have paid to HHIC but for the alleged UPMC-High-mark conspiracy.

UPMC in its opposition to plaintiffs’ motion for leave to file the third amended complaint argued that common issues among the class did not predominate over individualized issues because the small group plaintiffs’ injuries were highly individualized and could not be established by common proof.

UPMC argued the class as defined included Highmark subscribers that but for the alleged UPMC-Highmark conspiracy would have had nine different options for health insurance, and to determine which option each member of the class would have selected but for the alleged UPMC-Highmark conspiracy would require a fact finder to make individualized inquiries regarding the nature of each member’s claim.

Highmark in its opposition to plaintiffs’ motion for leave to file the proposed third amended complaint argued the class as defined was not plausible because it included Highmark customers that would have stayed with Highmark but for the alleged UPMC-Highmark conspiracy. Highmark explained that those class members’ damages would be barred by the filed rate doctrine because the damages would be calculated based upon the legally-approved rates those customers paid to Highmark and the legally-approved rates those customers would have paid to Highmark but for the alleged UPMC-Highmark conspiracy.

The court in its opinion dated August 21, 2014, held that UPMC and Highmark were correct, explaining: [T]he putative small-group plaintiff class as defined in the proposed third amended complaint does not satisfy the requirements of Rule 23 because damages cannot be proven on a class wide [sic] basis; indeed, “[questions of individual damage calculations will inevitably overwhelm questions common to the class.” Comcast, 133 S.Ct. at 1433; In re Relafen Antitrust Litig., 221 F.R.D. 260, 272 n. 10 (D.Mass.2004). Royal Mile, 40 F.Supp.3d at 585.

The court further explained that individualized questions with respect to the damages calculation based upon the class allegations in the proposed third amended complaint would overwhelm questions common to the class because determining damages necessarily included resolving whether the class members would have stayed with High-mark or switched to another health insurance provider.

If members of the small group plaintiffs’ putative class would have stayed with Highmark but for the alleged UPMC-Highmark conspiracy, their measure of damages would be barred by the filed rate doctrine, i.e., those members of the putative plaintiff class could not prove they were injured by the alleged UPMC-Highmark conspiracy because a consumer is not injured when it pays a legally filed rate. Royal Mile, 40 F.Supp.3d at 594-95 (citing In re N.J. Title Ins. Litig., 683 F.3d 451, 461 (3d Cir.2012) (citing Keogh v. Chicago & N.W. R. Co., 260 U.S. 156, 163, 43 S.Ct. 47, 67 L.Ed. 183 (1922); Wegoland Ltd. v.

NYNEX Corp., 27 F.3d 17, 18 (2d Cir.1994))). The court commented that based upon Comcast Corp. v. Behrend, — U.S. -, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013), certifying a class for which damages cannot be proven on a classwide basis is inefficient and improper, especially because a segment of the putative class could not prove it was injured by the alleged UPMC-Highmark conspiracy. Royal Mile, 40 F.Supp.3d at 586-87.

The court concluded that based upon the foregoing analysis, it was “plain enough from the pleadings” that the small group plaintiffs could not meet the requirements of Rule 23 to prove class certification based upon the definition of the putative class set forth the proposed third amended complaint. Id. at 586. A recent decision from the Court of Appeals for the Third Circuit, Neale v. Volvo Cars of North America, LLC, 794 F.3d 353 (3d Cir.2015), implicates that this court’s reading of Comcast was too broad.

This court cited Comcast for the proposition that class certification is improper if damages cannot be proven on a classwide basis. The Court of Appeals for the Third Circuit in Neale explained that the Court in Comcast “held that an antitrust litigation class could not be certified because the plaintiffs’ damages model did not demonstrate the theory of antitrust impact that the district court accepted for class-action treatment.” Neale, 794 F.3d at 374 (citing Comcast, 133 S.Ct. at 1433).

The defendant in Neale cited to Comcast for the proposition that a plaintiff attempting to achieve class certification must show that “damages are susceptible of measurement across the entire class for purposes of Rule 23(b)(3).” Neale, 794 F.3d at 374. The court of appeals rejected the defendant’s reading of Comcast, noting the' decision did not create a “broad-based rule applicable to Rule 23(b)(3).” Neale, 794 F.3d at 374.

The court explained: [T]he Supreme Court specifically noted that it was not breaking any new ground by stating at the beginning of its opinion: “This case thus turns on the straightforward application of class-certification principles.” Comcast, 133 S.Ct. at 1433. A close reading of the text above makes it clear that the predominance analysis was specific to the antitrust claim at issue. That is eminently sensible. Every question of class certification will depend on the nature of the claims and evidence presented by the plaintiffs.

What we know for sure is that whatever “Comcast’s ramifications for antitrust damages models or proving antitrust impact,” a trial court must “ ‘consider carefully all relevant evidence and make a definitive determination that the requirements of Rule 23 have been met before certifying a class.’” In re Blood Reagents Antitrust Litig., 783 F.3d 183, 186-87 (3d Cir.2015) (quoting Hydrogen Peroxide, 552 F.3d at 320). Our reading of Comcast is consistent with decisions by several of our sister courts.

That is because “[rjecognition that individual damages calculations do not preclude class certification under Rule 23(b)(3) is well nigh universal.” Comcast, 133 S.Ct. at 1437 (Ginsburg, J. & Breyer, J., dissenting) (citing 2 William B. Rubenstein, Newberg on Class Actions § 4:54 (5th ed.2012)). Had the District Court ruled as Volvo requested, denying certification on that basis alone would have amounted to an abuse of discretion. See Roach [v. T.L. Cannon Corp.], 778 F.3d [401] at 409 [ (2d Cir.2015) ].

In sum, and as explained by the Fifth Circuit, it is “a misreading of Com-cast” to interpret it as “precluding] certification under Rule 23(b)(3) in any case where the class members’ damages are not susceptible to a formula for classwide measurement.” In re Deepwater Horizon, 739 F.3d [790] at 815 & n. 104 [ (5th Cir.2014) ]. Id. at 374-75. Based upon the rationale by the court of appeals in Neale, this court-erroneously relied on Comcast for the broad-based rule that a class should not be certified if damages cannot be proven on a classwide basis.

The decision in Neale, however, does not warrant a different outcome in the court’s opinion dated August 21, 2014, with respect to the class action allegations in the proposed third amended complaint. As the court of appeals explained, the proper consideration under the predominance requirement of Rule 23 is -whether “ ‘questions of law or fact common to class members predominate over any questions affecting only individual members.’ ” Neale, 794 F.3d at 374 (quoting Fed. R. Civ. P. 23(b)(3)).

Despite its citation to Comcast, this court in its opinion dated August 21, 2014, applied the correct standard of law when it determined that based upon the factual allegations contained in the proposed third amended complaint the questions of law or fact common to class members did not predominate over questions affecting individual members of the class. Royal Mile, 40 F.Supp.3d at 585 (noting “questions of individual damage calculations will inevitably overwhelm questions common to the class”).

As the court explained, there were members of the putative class as defined in the proposed third amended complaint that could not prove individual injury, also known as antitrust impact, caused by the alleged UPMC-Highmark conspiracy because a plaintiff is not injured when it pays a legally filed rate. In other words, there were members of the putative class — those who would have continued to purchased health insurance from Highmark but for the alleged UPMC-Highmark conspiracy — that could not prove an essential element of an antitrust claim under the Sherman Act.

The Third Circuit Court of Appeals has recognized: “ ‘If proof of the essential elements of the cause of action requires individual treatment, then class certification is unsuitable.’ ” In re Hydrogen Peroxide, 552 F.3d at 311 (quoting Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 167 (3d Cir.2001)). Under the Sherman Act, “to prevail on the merits, every class member must prove at least some antitrust impact resulting from the alleged violation.” In re Hydrogen Peroxide, 552 F.3d at 311 (citing Bogosian v. Gulf Oil Corp., 561 F.2d 434, 454 (3d Cir.1977)).

Based upon the class definition for small group plain tiffs in the proposed third amended complaint, all class members could not prove antitrust impact resulting from the alleged UPMC-Highmark conspiracy. To determine if class members would have continued to purchase health insurance from Highmark but for the alleged UPMC-Highmark conspiracy, and, thus, could not prove a prima facie case under the Sherman Act, would require individualized questioning about whether the class members would have switched their health insurance coverage but for the alleged UPMC-Highmark conspiracy.

That individualized inquiry of antitrust impact for each class member would inevitably overwhelm the common questions of law and fact in this case. Under those circumstances — even without the court’s citation to Comcast — it was plain enough from the proposed pleadings that it was one of the “rare” cases in which certification of the class defined in the proposed complaint, i.e., the proposed third amended complaint, was not proper. ii.

The Class Defined in the Third Amended Complaint The court in its opinion dated August 21, 2014, explained that class certification may be appropriate in this case based upon a class defined as Highmark customers that Highmark switched to HHIC prior to March 21, 2012. Royal Mile, 40 F.Supp.3d at 592-93.

The court noted that the class would be administratively ascertainable if Highmark has records of customers that were switched from High-mark to HHIC, and damages could be calculated on a classwide basis based upon the difference between the unregulated rates the customers that were switched to HHIC paid to HHIC during the alleged UPMC-Highmark conspiracy and the unregulated rates those customers would have paid to HHIC but for the UPMC-Highmark conspiracy.

Cole’s Wexford in the third amended complaint defines the putative class as: “all persons, whether natural or fictitious, who purchased small group health insurance coverage from, or otherwise paid any small group plan premiums or portion thereof to, Highmark Health Insurance Co., or a similar for-profit subsidiary of Highmark Inc., between approximately July 1, 2010 and approximately March 21, 2012.” (ECF No. 286.) Highmark argues in its motion to dismiss and accompanying briefs that based upon the court’s opinion dated August 21, 2014, Cole’s Wexford’s class allegations should be stricken from the third amended complaint because it is clear on the face of the complaint that Cole’s Wexford cannot prove injury in fact on a classwide basis, and, therefore, individual questions overwhelm the common issues in this case. (ECF No. 289 at 12.) Highmark explains that Cole’s Wexford cannot prove that all members of the putative plaintiff class suffered injury in fact and damages caused by the alleged UPMC-Highmark conspiracy because the putative class contains members that would have switched from HHIC to High-mark’s insurance competitors and Cole’s Wexford conceded that it is not seeking damages based upon the difference between rates class members paid to HHIC and rates class members would have paid to Highmark’s insurance competitors but for the alleged UPMC-Highmark conspiracy. (ECF No. 298 at 4.) Highmark explains: “That means that the complaint alleges no legally cognizable theory of injury for any of the switchers, so the complaint states no claim as to them and they cannot be members of the proposed class.” (Id. at 3.) Cole’s Wexford argues in response that in the third amended complaint it asserts a measure of damages based upon “the price that Highmark charged the HHIC Class during the conspiracy period ... [and] the price Highmark would have charged the HHIC Class in the absence of the conspiracy.” (ECF No. 294 at 10.) As Highmark points out, Cole’s Wexford in the third amended complaint “is not claiming damages resulting from premiums the Class would have paid to competing insurers that would have entered the market but for the conspiracy.” (Id. at 10, n. 3.) Cole’s Wex-ford argues its theories of injury-in-fact and impact do not require an analysis of whether any class member would have switched its insurance coverage from HHIC to one of Highmark’s competitors. (Id. at 10.) The court cannot agree with High-mark’s argument, which is based upon this court’s misreading of Comcast, i.e., that class certification is proper only if damages can be proven on a classwide basis.

As discussed above, the proper consideration with respect to predominance is whether “questions of law or fact common to class members predominate over any questions affecting only individual members.” Fed.R.Civ.P. 23(b)(3). At this stage, the allegations in the third amended complaint with respect to the anticompeti-tive actions of UPMC and Highmark are common to all members of the putative class.

Cole’s Wexford alleges that, among other things, UPMC and Highmark engaged in an anticompetitive conspiracy to exclude Highmark’s competitors so that UPMC could charge Highmark exorbitant rates which Highmark could pass on to its consumers, i.e., Cole’s Wexford and other members of the putative class. As previously discussed, damages need not be proven on a classwide basis for class certification to be appropriate.

Cole’s Wexford contends, furthermore, that it is seeking damages for itself and other members of the class limited to the difference between the rates HHIC charged and the rates HHIC would have charged but for the alleged UPMC-High-mark conspiracy. Unlike the proposed third amended complaint, the third amended complaint does not set forth a measure of damages barred by the filed rate doctrine.

It is not plain enough from the pleadings that an individualized inquiry about whether each member of the putative class can prove its prima facie case and damages would overwhelm the common questions of law and fact in this ease. Under those circumstances, the court is not convinced that this is one of the “rare” cases “where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met.” Landsman & Funk, 640 F.3d at 93 n. 30. Highmark may raise its arguments in opposition to class certification at that stage of the proceedings.

At that time, Cole’s Wexford’s damages model “ ‘must be consistent with its liability case, particularly with respect to the alleged anti-competitive effect of the violation.’ ” Comcast, 133 S.Ct. at 1433 (quoting ABA

Section of Antitrust Law, Proving Antitrust Damages: Legal and Economic Issues 57, 62 (2d Ed.2010)). Highmark’s request for the court to strike the class action allegations in the third amended complaint will be denied. B. UPMC’s Arguments 1.

UPMC argues that Cole’s Wexford Failed to Allege an Antitrust Claim Against UPMC In the third amended complaint, Cole’s Wexford alleges that on July 1, 2010, Highmark transferred it and other members of the putative plaintiff class to HHIC to charge them supracompetitive prices for health insurance without PID oversight, and continued to overcharge them for health insurance until March 21, 2012.

UPMC argues that Cole’s Wexford failed to state an antitrust claim against it because Cole’s Wexford does not allege any action taken by UPMC after 2008. (Id.) In other words, according to UPMC, Cole’s Wexford does not plausibly allege that the conspiracy between UPMC and Highmark existed when Highmark “unilaterally” transferred Cole’s Wexford and other members of the putative class to HHIC to charge them supracompetitive rates without PID oversight. (ECF No. 300 at 2.) Cole’s Wexford argues in response that: (1) the third amended complaint contains allegations sufficient to plausibly show that Highmark charged Cole’s Wexford and the putative plaintiff class supracompetitive rates pursuant to the alleged UPMC-Highmark conspiracy;

(2) UPMC is jointly and severally liable for Highmark’s actions taken pursuant to the alleged UPMC-Highmark conspiracy, even if UPMC was not fully aware of those actions; (3) whether UPMC engaged in misconduct during the class period is not dispositive with respect to Cole’s Wexford’s claims against UPMC; (4) the third amended complaint contains allegations that the alleged UPMC-Highmark conspiracy lasted beyond 2008; and

(5) UPMC is liable for damages accrued after the alleged UPMC-Highmark conspiracy ended. The arguments presented by UPMC and Cole’s Wexford raise a number of issues, which will be addressed below to determine whether Cole’s Wexford plausibly stated a claim for relief against UPMC. a. The Concerted Action Requirement of §§ 1 and 2 of the Sherman Act Cole’s Wexford asserts claims against UPMC and Highmark for antitrust damages under § 1 and § 2 of the Sherman Act based upon UPMC and High-mark conspiring to restrain trade in the relevant health insurance market (§ 1) and to monopolize in the relevant health insurance and health provider markets (§ 2).

Section 1 provides that “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States ... is declared to be illegal.” 15 U.S.C. §

Section 2 imposes liability on “[ejvery person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States.” 15 U.S.C. § 2. To impose liability upon defendants under § 1, a plaintiff always must prove concerted action taken by the defendants, such as an agreement between two defendants to restrain trade. Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 768 n. 13, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984).

When a plaintiffs claim under § 2 is based upon a conspiracy to monopolize, the plaintiff also must prove the defendants entered into an agreement to monopolize the relevant market. Id. The Third Circuit Court of Appeals has explained that “to the extent it bans conspiracies to monopolize,

section 2 is largely superfluous, as conspiracies to monopolize will usually — if not always — run afoul of

section l’s prohibition of conspiracies that unreasonably restrain trade.” W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85, 99 n. 7 (3d Cir.2010). b. Conspirator Liability “Antitrust liability is joint and several.” 1 John J. Miles, Health Care and Antitrust L. § 9:13 (2015). “Thus, each defendant participating in the unlawful conduct is liable for the entire amount of damages caused by the violation regardless of the degree of its culpability in causing the damages.” Id. A conspirator may withdraw from the conspiracy. Morton’s Market, Inc. v. Gustafson’s Dairy, Inc., 198 F.3d 823, 837 (11th

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