AbbVie Inc. v. Payer Matrix, LLC, No. 23 CV 2836, 2026 WL
1846752 (N.D. Ill. Jun. 26, 2026)

Another round in AbbVie’s fight
against Canadian imports.

Payer Matrix contracts with employers or an employer’s
pharmacy benefit manager (PBM) or third-party administrator (TPA) to help their
members access high-cost specialty drugs not covered under an insurance plan,
including by assisting them in applying for drug companies’ patient assistance
programs (PAP). PAP eligibility is determined by the drug company; it often requires
applicants to be insured or underinsured. AbbVie specifically requires the
member’s healthcare provider to complete much of the application, “so Payer
Matrix follows up with providers to ensure that the applications submitted are
timely.” “Payer Matrix disclosed its involvement in these applications to
AbbVie and worked with AbbVie representatives as part of its PAP eligibility
investigations.” It also “started a biosimilar program to encourage members and
their health care providers to explore biosimilar alternatives to brand-name
specialty drugs.”

AbbVie didn’t like that PAP lowered its revenue compared to its
co-pay assistance program. It described alternate funding providers (AFPs) like
Payer Matrix as a “malignant tumor” that “needed to be dealt with strategically
and aggressively.” It therefore changed its PAP eligibility requirements to exclude
patients working with Payer Matrix.

AbbVie told representatives to say that AbbVie had “updated
[its] eligibility guidelines to respond to changes with [the patient’s]
insurance provider,” and to say that AFPs “[c]an cause delays to treatment and
be highly disruptive to patients, as well as infringing on benefits intended
for patients who are uninsured or underinsured.” AbbVie sent denial letters
stating that the denial was because AbbVie “believe[d] [the patient’s]
insurance provider is, or is partnering with a third-party company to,
inappropriately utilize our program instead of their insurance coverage.” Sometimes
its representatives speaking to patients went further, telling patients that
Payer Matrix was “committing fraud” or “operating illegally,” and directing
them to contact Payer Matrix for assistance in paying for their medications. “AbbVie
representatives also responded to telephone inquiries from healthcare providers
by telling them that ‘Payer Matrix was causing [ ] problems with coverage,’
that Payer Matrix was acting illegally, and that the providers should not work
with Payer Matrix.”

Meanwhile, the Patient Access Network (“PAN”), a charitable
foundation to which AbbVie donated approximately $100 million in 2023, began
speaking out against AFPs and specifically Payer Matrix. (Um. I’m sure they
have plenty of legal advice, and of course I don’t expect our tax enforcers to
do anything, but how on earth is it legal for AbbVie to give a bunch of money
to a charity that it can write off as a donation and then get the money back
from the charity, as expected? They should be allowed to write off the cost of
the drugs purchased with AbbVie’s money, but that would be a lot less.)

Payer Matrix sued for various product disparagement/advertising
torts as well as antitrust and RICO claims. The RICO claims failed because they
were RICO claims. The antitrust claims failed because they were antitrust
claims (it was antitrust injury that was missing).

Defamation: Illinois recognizes qualified privileges that
protect against liability unless the publication was knowingly false or
published while entertaining serious doubts about its truth, or the publication
was disseminated beyond the proper parties. Some of AbbVie’s communications
were protected by qualified privilege, including statements in the online PAP
application, letters to denied PAP applicants, talking points provided to call
representatives to respond to questions about PAP denials, resulting statements
by call representatives, and some AbbVie statements to healthcare providers. Talking
points to help AbbVie’s call representatives respond to questions about the
instant lawsuit weren’t.

So, for those, knowledge of falsity or reckless disregard
was required, or statements beyond the scope of the privilege—the latter was
only alleged for a few statements by call representatives who said that Payer
Matrix was acting “illegally” or “committing fraud,” and statements to
healthcare providers that they should not work with Payer Matrix and that “all
of the other [drug] manufacturers” would be following AbbVie’s lead. “The
qualified privilege in this case is justified by the need for AbbVie to help
patients and their providers understand their eligibility for the PAP. It is
reasonable to conclude that statements that Payer Matrix was acting illegally
and that healthcare providers should not work with Payer Matrix go beyond the
scope of that need.”

As to plausible knowledge of falsity, the talking points
allegedly directed AbbVie call representatives to state that AFPs “[c]an cause
delays to treatment and be highly disruptive to patients, as well as infringing
on benefits intended for patients who are uninsured or underinsured.” “But,
Payer Matrix alleges, the delays were not Payer Matrix’s fault, and AbbVie,
whose own benefits investigations were the real reason for the delays, knew it.
That is enough to plausibly allege that AbbVie made this statement [and similar
ones to a healthcare provider] while knowing that it was false.”

It was also plausible that AbbVie knew the falsity of the
statement that it “updated [its] eligibility guidelines to respond to changes
with [the applicant’s] insurance provider,” since AbbVie had allegedly worked
with insurance plans affiliated with Payer Matrix and understood Payer Matrix’s
role “since at least 2021,” and thus there were no AFP-related changes to
applicants’ insurance plans in 2023 when the terms changed.

In addition, AbbVie plausibly knew of the falsity of
statements by its representatives instructing denied PAP applicants to ask
Payer Matrix for help with drug coverage, since it knew that wasn’t Payer
Matrix’s role in the system.

But AbbVie’s statements about entities “inappropriately”
using the PAP weren’t statements of verifiable fact, and so there couldn’t be
scienter (or, of course, liability).

Additionally, AbbVie’s talking points explaining its reasons
for bringing this lawsuit were non-actionable opinion: that Payer Matrix “misus[ed]
patient assistance programs” and that “AbbVie aims to protect [its] programs
and patients from [Payer Matrix’s] exploitative tactics.” These weren’t terms
with precise meanings, and the context—explaining the lawsuit—bolstered the “opinion”
characterization.

However, accusations that Payer Matrix’s conduct was
“illegal” or “fraud” were verifiable in context.

Additional barriers defeated some accusations: Alleged
statements by AbbVie that it changed its PAP eligibility requirements due to
“changes with [the patient’s] insurance provider” were not “about” Payer
Matrix. And alleged statements directing members to ask Payer Matrix for
assistance with drug coverage were neither defamatory per se nor defamatory per
quod. On their face, they didn’t impute commission of a crime, suggest an
inability or lack of integrity in performing employment duties, or prejudice
Payer Matrix in its trade (per se). Even if, as argued, they implied that Payer
Matrix was responsible for paying drug costs but failed to do so, Payer Matrix
didn’t plead a connection between its damages and this statement (per quod).

The remaining statements (illegality, fraud, delays) were
defamatory per se, and Payer Matrix also alleged “special damages, including
loss of contracts with health plans, cessation of referrals from brokers and
[healthcare providers], lost profits, and harm to its reputation in the
healthcare and health benefits industries,” including a $26 million drop in
revenue from a single broker in 2024.

Tortious interference: It wasn’t independently wrongful to
refuse to allow PAP participation by members of insurance plans affiliated with
Payer Matrix or publish PAP policies and send denial letters that identified
Payer Matrix by name. As for the stuff that survived the defamation screen
above, AbbVie argued that it didn’t communicate directly with Payer Matrix’s
actual clients. But “AbbVie had reason to believe that its comments would make
their way back to Payer Matrix’s clients; it would be unreasonable to expect
patients to whom AbbVie allegedly accused Payer Matrix of fraud to keep those
accusations from their plan administrators or sponsors.” Payer Matrix also made
specific allegations about losing specific clients due to AbbVie’s accusations.

Illinois Consumer Fraud Act: The Illinois Supreme Court
recently emphasized that in all ICFA claims, the plaintiff must allege that it
was the intended target of the alleged deception. Payer Matrix didn’t allege
that AbbVie intended for it to rely on any alleged deception or unfairness, but
only that it intended to cause reliance by “Members, Plans, PBMs, and TPAs.” So
that claim was dismissed.

Illinois Uniform Deceptive Trade Practices Act Claim: The
alleged false statements underlying the claim were not made “in the context of
false advertising or promotion or a trademark violation.” Payer Matrix was
judicially estopped from arguing that the DTPA covered the statements at issue.
It defeated certain of AbbVie’s Lanham Act claims, and DTPA claims based on the
same conduct, based on the arguments that (1) the Lanham Act is essentially
coextensive with the DTPA, and (2) the accused statements were not made in
commercial advertising or promotion. It could not now argue that the DTPA
covered more than commercial advertising or promotion.

AbbVie also reasserted trademark/false association and false
advertising claims based on allegations that Payer Matrix imported or helped
import medicines from Canada.

In 2024, Payer Matrix began facilitating the importation of
Canadian AbbVie medications in partnership with RxFree4me and RxFree4me’s
affiliated Canadian pharmacies. Its advertising describes RxFree4me as its
“vendor partner” and makes clear that the drugs are sourced internationally. For
plans that participate, each patient gets a form asking them to authorize Payer
Matrix to contact the patient’s prescriber and send the patient’s prescription
to RxFree4me. “The form also states that the drugs will be dispensed by foreign
pharmacies and asks the patient to appoint Payer Matrix as an agent to
facilitate the order, including having the product packaged and delivered.”

If the patient completes the form, Payer Matrix asks the
patient’s doctor to send the patient’s prescription to one of RxFree4me’s
partner U.S. pharmacies, which then works with a Canadian doctor who writes a
new prescription copied from the original. That goes to a Canadian pharmacy for
filling and shipment. “Payer Matrix monitors and facilitates the shipments,
including by contacting patients to confirm that they received the shipments.”

There are alleged differences between the two countries’
drugs, primarily FDA approval versus approval by Health Canada; packaging
instructions with either a US or Canadian number to report side effects; and contact
information for either a US or Canadian patient support program. “Some Canadian
AbbVie labels include temperature ranges in Celsius, and dosage information for
children and adolescents based on their weight in kilograms, whereas the U.S.
AbbVie labels list temperatures in Fahrenheit and give weights in pounds.”

AbbVie also alleged that there were differences in how the
drugs are shipped: Payer Matrix’s method uses third-party carriers that AbbVie
hasn’t approved. “[B]ecause international shipping routes regularly exceed the
storage temperature ranges for AbbVie’s medications, AbbVie ships its medicines
in sealed, temperature-controlled containers and requires its authorized
distributors to follow specific temperature-related guidelines during storage
and transport.” However, it was unable to ensure that the shippers used by
Payer Matrix comply with these requirements. Also, recalls are region-targeted,
so U.S. patients would be alerted to recalls for drugs that they bought in the
U.S., but not for drugs that they bought in Canada.

Even assuming that this was a “gray-market” case, AbbVie’s
claims failed. Such cases find confusion only if there’s a material difference.
Note: They should also fail if the consumer knows what she’s getting, even if
it has a material difference! Maybe there can be unfair competition without
competition, but there shouldn’t be trademark infringement without confusion.

And indeed, the court concluded that AbbVie needed to allege
facts “plausibly showing that consumers would be confused by differences
between the foreign and domestic products.” The court concluded, once again, that
“[i]t is no secret that RxFree4Me sources drugs from Canada,” and “it should be
obvious to Payer Matrix’s members that the imported drugs do not undergo U.S.
regulatory processes because they are sourced from Canadian pharmacies.” Plan members
fill out an authorization form that represents that the medication will be
“dispensed by the foreign Pharmacy.” The form also authorizes Payer Matrix—not AbbVie—to
facilitate the international order, “including by packing the Product and
delivering it to the patient.”

“The differences that AbbVie cites are exactly the
differences that Payer Matrix’s customers would reasonably expect from
medications purchased internationally.” Even the shipping quality controls argument
was “obviated by the fact that Payer Matrix members seeking non-U.S. drugs
authorize Payer Matrix (that is, not AbbVie) to facilitate packing and delivery.”
These differences could therefore not be material. (That’s not how I would have
said it, but it fits with an empirical definition of materiality: We know that the
differences weren’t material to the consumers who ordered the foreign drugs because
they knew they were foreign drugs shipped by Payer Matrix.)

So nice to see: “To be sure, many of the cases suggest that
the types of labeling, compliance, and quality control issues alleged here can
be material in certain circumstances. But none of those cases involve the type
of informed purchase at issue here.” There was no allegation here of
counterfeiting, and the disclosures were made to end users, not intermediaries.

What about confusion by subsequent purchasers?  “That rationale holds up for the types of
extremely expensive durable goods at issue in [cases involving farm equipment],
but it does not make sense here, where Payer Matrix’s members purchase
consumable medications.”

Nor were the differences as significant as those in Novartis
Animal Health US, Inc. v. Abbeyvet Exp. Ltd., 409 F. Supp. 2d 264 (S.D.N.Y.
2005), where, a website sold British-market pet medications to U.S. consumers. “Even
assuming the consumers in that case knew that they were purchasing medications
intended for the British market, the differences were so significant that U.S.
consumers would likely be confused by the British product. For example, the
U.S. versions of the pills were flavored, and the British versions were
unflavored; the British versions were also sold in different dosages.” Those differences
would be material, unlike converting from pounds to kilograms. “And unlike the
differences at issue here that are inherent to the differences between the
Canadian and U.S. pharmaceutical markets—such as regulation by Canadian rather
than U.S. regulatory bodies, and use of the metric system—there is nothing
about the British pet medication market that would make a U.S. consumer expect
to receive an unflavored medication when they were used to buying flavored
medications from the same brand.”

from Blogger https://tushnet.blogspot.com/2026/07/canadian-imported-drugs-whose-origin.html