Antitrust Law Daily Wrap Up, ANTITRUST—N.D. Ill.: Alternative funding consultancy’s antitrust counterclaims against AbbVie fail to allege antitrust injury, (Jul 6, 2026)

By Justin Marcus Smith, J.D.

Reputational damage and loss of business were only indirect and incidental to the alleged AbbVie scheme to achieve monopoly power in the AbbVie drug market.

Payer Matrix, an alternative funding consultancy serving self-funded employer health plans, failed to plead viable antitrust counterclaims against drug manufacturer AbbVie, Inc., in a dispute about the availability of biologic drugs, held the federal district court in Chicago. Payer Matrix did not allege the type of injury the antitrust laws were meant to prevent. The court also dismissed Payer Matrix’s Racketeer Influenced and Corrupt Organizations Act (RICO) counterclaims because they did not show relationships among non-AbbVie entities allegedly associated with two putative enterprises. The respective enterprises did not have a facial common purpose. Some Payer Matrix defamation and tortious interference counterclaims survived dismissal, but the court dismissed the Payer Matrix Illinois Consumer Fraud Act (ICFA) and Illinois Deceptive Trade Practices Act (IDTPA) counterclaims. The court also denied any new or amended AbbVie claims related to consumer protection, trade practices, or trademarks under the Lanham Act, ICFA, IDTPA, or any other cause of action based on the Payer Matrix international drug importation program (AbbVie Inc. v. Payer Matrix, LLC, No. 1:23-cv-02836 (N.D. Ill. Jun. 26, 2026)).

Background. In 2023, AbbVie, Inc., a manufacturer of biologics (complex molecule pharmaceuticals derived from living organisms) sued Payer Matrix. Payer Matrix is a consultancy that contracts with self-funded employer healthcare plans, their pharmacy benefit managers, or third-party administrators (TPA), to help their members access high-cost specialty drugs not covered under an insurance plan. AbbVie alleged that “Payer Matrix operates a fraudulent and deceptive scheme to enrich itself by exploiting AbbVie’s [Patient Assistance Program (PAP)] through the enrollment of insured patients into a charitable program not intended for them.”

Payer Matrix moved to dismiss AbbVie's complaint as amended, but the judge denied dismissal of three of AbbVie’s four claims brought under RICO. The court found that alleged Payer Matrix interactions with three of four pharmacy benefit manager (PBM) entities amounted to a facial “enterprise” within the meaning of the RICO statute. The court also denied in part the Payer Matrix motion to dismiss AbbVie’s Lanham Act claims, but it granted dismissal of AbbVie’s claim under ICFA and IDTPA.

At length, AbbVie brought a second amended complaint, and Payer Matrix moved to dismiss for failure to state a claim. Payer Matrix also brought counterclaims against AbbVie, including antitrust claims, and AbbVie moved to dismiss them all. The court granted the Payer Matrix motion for partial dismissal and granted AbbVie’s motion to dismiss in part and denied it in part.

Antitrust counterclaims. Payer Matrix counterclaimed that AbbVie engaged in monopolization and attempted monopolization in violation of the Sherman Act and the Illinois Antitrust Act; however, at bottom, Payer Matrix did not allege the type of injury the antitrust laws were meant to prevent.

According to the Payer Matrix counterclaims, the relevant AbbVie drug market was a nationwide one for prescription pharmaceuticals reasonably interchangeable with, or that serve as effective therapeutic substitutes for, AbbVie biologics in treating the same indications.

The first problem with the Payer Matrix antitrust counterclaims was that Payer Matrix does not buy or sell drugs in the relevant market. It was merely a service provider to market participants. Even if AbbVie allegedly caused reputational damage to Payer Matrix and concomitant loss of business, those injuries were only indirect and incidental to the alleged AbbVie scheme to achieve monopoly power in the AbbVie drug market.

Payer Matrix countered that its injury was “inextricably intertwined” with the alleged market injury, but the court said the Seventh Circuit construes the exception narrowly. Payer Matrix did not allege that it is a buyer or seller in a market “so closely related” to the market for AbbVie drugs that it would be “invariably impact[ed]” by AbbVie’s allegedly anti-competitive scheme. Instead, Payer Matrix facially acted as a “financial case manager” that helps employer-sponsored health plans provide high-cost medications. Its position relative to the market was akin to that of the listing-service provider in Southwest Suburban Bd. of Realtors, Inc. v. Beverly Area Planning Ass'n, 830 F.2d 1374 (7th Cir. 1987). Southwest Suburban was still good law, it was not meaningfully distinguishable here, and the court said the out-of-circuit cases Payer Matrix cited were unpersuasive. The court accordingly held Payer Matrix did not allege antitrust injury, and it dismissed the Payer Matrix antitrust counterclaims for that reason.

RICO claims. The court found the Payer Matrix RICO counterclaims did not show relationships among the non-AbbVie entities allegedly associated with a putative Foundation Enterprise and Consultant Enterprise, respectively. The Foundation Enterprise allegedly consisted of AbbVie, the charitable foundation known as the Patient Access Network (PAN), and other unidentified charitable foundations. The Consultant Enterprise consisted of various identified and unnamed third-party consultants. In this context, AbbVie contended that Payer Matrix failed to allege participation in the “conduct” of an “enterprise” in either instance, but Payer Matrix contended both enterprises were associations-in-fact.

The court analyzed that the Payer Matrix counterclaims did not show relationships among the non-AbbVie entities allegedly associated with either alleged association-in-fact enterprise. Payer Matrix only made conclusory allegations about coordinated activities. The counterclaims had no or scant factual context showing any relationship among the foundations of the purported Foundation Enterprise outside their individual relationships with AbbVie.

Allegations about each consultant’s distinct role in the purported association-in-fact Consultant Enterprise were slightly more substantial, but they did not support an inference that a named consultant or the other unnamed consultants had relationships with anyone other than AbbVie. Allegations of common purpose were also lacking. The relationships appeared to be “run-of-the-mill” commercial relationships grounded in self-interest. There was not enough entanglement required for a facial RICO enterprise. The court said it did not need to credit conclusory assertions about AbbVie donations having been part of a “quid pro quo” that directly benefited PAN executives and served as conduits for AbbVie financial objectives.

Settlements involving AbbVie and PAN did not support a plausible inference of collusive pursuit of a common purpose, and there were no allegations showing an unusual degree of economic interdependence. The type of work that the consultants performed for AbbVie, primarily market surveillance and recommendations, were characteristic of almost all consultancy relationships.

In distinguishing run-of-the-mill commercial relationships from RICO enterprises, the court found the Payer Matrix RICO counterclaims failed to show common purpose, which doomed them. Failure to allege engagement in the conduct of an enterprise was enough to dismiss them. However, the court warned Payer Matrix should pay close attention to AbbVie’s other challenges to the RICO counterclaims inasmuch as they appeared to have merit.

Defamation counterclaims. Statements in AbbVie terms of participation and PAP denial letters were protected under a qualified privilege intended to protect the free exchange of information, and AbbVie did not abuse the privilege through malice. For example, Illinois courts have recognized a qualified privilege for letters from insurance companies explaining their coverage denial decisions. Although PAP is not insurance, it is closely related.

Other alleged statements were not privileged either because they did not apply in the first place or because Payer Matrix plausibly alleged that AbbVie abused such privilege. The court discussed these situations at length. The court also found some non-actionable statements of opinion.

That ultimately left several statements that might support Payer Matrix’s defamation claim, including alleged AbbVie statements that Payer Matrix acted illegally, fraudulently, or caused delays or other coverage problems. These constituted facial defamation per quod, that is, the listener needed to know facts outside the statement itself to understand it as defamatory. The Payer Matrix defamation counterclaims survived to this extent.

Tortious interference. The Payer Matrix tortious interference claims could proceed only to the extent they were based on AbbVie’s accusations of fraud and other wrongdoing directed toward plan sponsors, PBMs, and brokers.

ICFA counterclaim. The court dismissed the Payer Matrix ICFA counterclaim. Payer Matrix did not allege that AbbVie intended to cause reliance on any alleged deception or unfairness, only that it intended to cause reliance by members, plans, PBMs, and third-party administrators (TPAs).

IDTPA counterclaim. The court held Payer Matrix was estopped from arguing that its IDTPA counterclaims could proceed despite having been made outside the advertising context.

AbbVie claims. The court previously dismissed AbbVie’s Lanham Act claims for false association and false advertising to the extent they were based on allegations that Payer Matrix imported or helped import medicines from Canada. AbbVie brought three new or amended claims based on the same alleged importation scheme for trademark infringement under the Lanham Act; false association, endorsement, and designation of origin under the Lanham Act; and a claim under the IDTPA. Payer Matrix moved to dismiss these new claims to the extent AbbVie based them on the same alleged “international sourcing” scheme.

All three claims at issue required AbbVie to allege (1) a protectable trademark in the ABBVIE® mark and that (2) Payer Matrix’s use of the mark was likely to cause confusion among consumers. Payer Matrix only challenged the second element, likelihood of confusion, assuming it was a gray-market case.

The question was whether specific differences between AbbVie Canadian and U.S. market medications would confuse consumers who knowingly buy medications sourced from international pharmacies, but the court concluded the answer was “no.” Consumers would expect differences like metric measurements and lack of FDA reporting and U.S. patient support phone numbers, and cases AbbVie cited were not persuasive. AbbVie thus failed to allege a plausible consumer confusion element for its claims based on international drug importation. The court therefore dismissed the counts that relied on those allegations.

The importation program underlying the AbbVie claims in the first amended complaint was the same as the one underlying the new claims in the second amended complaint. The court’s dismissals of AbbVie claims related to the international drug importation program were based on the same underlying flaw in AbbVie’s pleadings: failure to allege a likelihood of confusion. The court said AbbVie had “ample opportunity” to get that pleading right, but it did not do so. The court accordingly denied any new or amended AbbVie claims related to consumer protection, trade practices, or trademarks under the Lanham Act, ICFA, IDTPA, or any other cause of action based on the Payer Matrix international drug importation program.

The Case is No. 1:23-cv-02836.

Judge: Alexakis, G.

Attorneys: Michelle D. Nasser (Dowd Bennett LLP) for AbbVie Inc. Calla N. Simeone (Richter & Hampton LLP) for Payer Matrix, LLC.

Companies: AbbVie Inc.; Payer Matrix, LLC

Cases: Antitrust RICO StateUnfairTradePractices IllinoisNews GCNNews