govinfo:USCOURTS-njd-2_22-cv-02632-0

Not for Publication 
 
UNITED STATES DISTRICT COURT 
DISTRICT OF NEW JERSEY 
 
 
JOHNSON & JOHNSON HEALTH CARE 
SYSTEMS INC., 
Plaintiff, 
v. 
SAVE ON SP, LLC, 
Defendant. 
 
 
Civil Action No. 22-2632 
OPINION & ORDER 
 
 
 
John Michael Vazquez, U.S.D.J. 
In this matter, Plaintiff J ohnson & Johnson Health Care Syst ems Inc. (“JJHCS”) alleges 
that Defendant Save on SP, LLC (“SaveOnSP”) created a plan to deplete Plaintiff’s payment 
assistance program for patients using certain of its costly, specialty prescription medications. 
Plaintiff alleges that Defendant cr eated its plan to financially be nefit itself and it s partners at 
Plaintiff and the patients’ expense. Presently be fore the Court is Defendant’s motion to dismiss 
the Complaint. D.E. 31. Plaintiff filed a brief in opposition, D.E. 34, to which Defendant replied, 
D.E. 43. In addition, non-parties the Aimed Allian ce, Triage Cancer, the HIV + Hepatitis Policy 
Institute, the Coalition of State Rheumatology Organizations, the AIDS Institute, the National 
Oncology State Network, and the Connecticut Onco logy Association (collectively, the “Patient 
Advocate Amici”) and Pharmaceutical Research and Manufacturers of America (“PhRMA”) filed 
motions seeking leave to file Amicus Curiae briefs in support of Plaintiff. D.E. 35, 38. Defendant 
filed a brief in opposition to both motions, D.E. 49, to which the Patient Advocate Amici replied, PageID:
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D.E. 52. The Court reviewed the parties’ submissions 1 and decided the motions without oral 
argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons set forth below, 
Defendant’s motion to dismiss is DENIED and the amici’s motions are GRANTED. 
I. FACTUAL AND PROCEDURAL BACKGROUND 
Plaintiff, a subsidia ry of Johnson & Johnson, administers the Janssen CarePath program 
(“CarePath”). Compl. ¶¶ 7, 27.2 CarePath, among other things, provides financial assistance that 
helps patients afford out-of-poc ket costs for forty-four medicati ons that are manufactured by 
Johnson & Johnson pharmaceutical companies. Id. ¶¶ 7, 47. The medications include complex 
biologic treatments for various cancers, pulm onary arterial hypertension, and autoimmune 
disorders. For many of the me dications, there is no other treatment or “generic” substitute 
available. Id. ¶¶ 8, 32-34. 
Patients must meet certain criteria to be eligible for CarePath, including being enrolled in 
commercial or private health insurance. Id. ¶ 48. The CarePath terms and conditions provide that 
CarePath “may not be used with any other coup on, discount, prescription savings card, free trial, 
or other offer.” Id. In addition, CarePath participating patients agree to “meet the program 
requirements every time [t hey] use the program.” Id. After a patient enrolls in CarePath, he or 
 
1 The Court refers to Defendant’s brief in support of its motion to dismiss (D.E. 31-1) as “Def. 
Br.”; Plaintiff’s opposition (D.E. 34) as “Plf. O pp.”; and Defendant’s reply (D.E. 43) as “Def. 
Reply”. The Court refers to the Patient Advocate Amici’s motion, D.E. 35, as “PA Mot.”; 
PhRMA’s brief in support of its motion (D.E. 38- 1) as “PhRMA Br.”; Defendant’s opposition to 
amici’s motions (D.E. 49) as “Amici Opp.”; and the Patient Advocate Amic i’s reply brief (D.E. 
52) as “PA Reply”. 
 
2 The factual background is taken from Plaintiff’s Complaint. D.E. 1. When reviewing a motion 
to dismiss, a court accepts as true all well-pleaded facts in the Complaint. Fowler v. UPMC 
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). PageID:
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she receives a card that can then be used at a point-of-sale to cover most of the out-of-pocket costs 
for the medication. Id. ¶ 49. 
Defendant is a company that works “in part nership” with pharmac y benefits manager 
(“PBM”) Express Scripts and specialty pharmacy Accredo Health Group, Inc. (“Accredo”) to 
administer the SaveOnSP Program (the “Program”). Id. ¶ 28. Commercial health insurance 
companies contract with PBMs to manage prescription drug benefits for health insu rance plans. 
Thus, health insurance companies and PBMs work together to determine what cost-sharing 
obligations to impose on plan participants. Plaintiff alleges that PBMs “serve as middlemen with 
an aim towards increasing insurers’ and their own profits by determining which drugs a plan will 
cover and to what extent they will be covered.” Id. ¶ 37. Defendant’s Prog ram is allegedly one 
way a PBM, here Express Scripts, maximizes its profits (and in turn commercial health insurance 
companies’ profits) at Plaintiff and patients’ expense. See id. ¶¶ 50-51. 
Plaintiff alleges that the SaveOnSP Program has two components. First, the drugs at issue 
are reclassified from essential to non-essential health benefits under the Affordable Care Act 
(“ACA”). There is purportedly no medical reason for this change, and, in fact, it is made without 
regard to a patient’s medical needs. Id. ¶ 9. Plaintiff alleges that the drugs are re-designated to 
avoid the ACA’s co-pay limits an d annual out-of-pocket limits, wh ich caps the amount a patient 
with private insurance can be required to pay for medical care each year. Id. ¶¶ 9-10, 53-55, 57-
58. After a drug is designated as non-essential, the SaveOnSP Pr ogram “increases the patient’s 
copay amount for the given drug to an artificially high amount--o ften thousands of dollars per 
dose.” Id. ¶ 10. Plaintiff indicates that Defendant “wor k[s] in tandem with its payer partners” to PageID:
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implement these changes, id. ¶ 9, but recognizes that “private payers and their affiliated entities”3 
determine copays, id. ¶ 6; see also id. ¶ 37 (pleading that heal th insurance plans and PBMs 
determine cost-sharing obligations under health insurance plans). The inflated co-pays are key to 
the alleged scheme because the higher amounts essentially force patients into the Program. Id. ¶ 
56. 
The second part of the purported SaveOnSP Program is to target patients. Plaintiff alleges 
that Defendant uses the threat of the artificially inflated copay to coerce patients into enrolling in 
the SaveOnSP Program. Specifically, Defendant’s representatives allegedly tell patients that they 
will be responsible for the entire copay amount unless they join the Program; if the patients join 
the Program, the copay will be paid. Id. ¶¶ 12, 60. Defendant, however, fails to tell patients that 
they can access patient assistance program like CarePath without enrolling in the SaveOnSP 
Program. Id. ¶ 76. Defendant institutes an “outreach campaign” to get patients to enroll in the 
Program. Id. ¶¶ 12, 61. This campaign results in en rollment of 55% to 65% of a payer’s 
membership. Id. ¶ 62. For those members who do not enroll through Defendant’s outreach, 
Accredo conducts a warm transfer
4 to SaveOnSP when a member submits a claim. Id. ¶ 62. 
Plaintiff also alleges that Defendant, through Accr edo, manufacturers a fals e rejection to recruit 
patients. Id. ¶¶ 13, 63. Plaintiff alleges that an Accredo phone representative informs unenrolled 
patients that their claim for a covered medication was rejected and then transfers the patients to a 
SaveOnSP representative who attempts to enroll the patient in the Program. Id. The impetus for 
 
3 It would also appear that the payers, in conjunction with the PBMs , make the decision to 
reclassify the drugs to non-essential, although the Complaint is vague on this point. Plaintiff does 
allege, however, that reclassification is the brainchild of Defendant. See, e.g., Compl. ¶ 53. 
 
4 A “warm transfer” involves a person answering the phone and th en transferring the caller to a 
third party while the person stay s involved to provide assistan ce. Compl. ¶ 62 n.4 (citation 
omitted). PageID:
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patients to enroll in the SaveOnSP Program is that they are informed that they will be responsible 
for the very high co-pay if they do not enroll but will not have any co-pay if they do enroll. 
Once enrolled in the Program, Defendant’s re presentatives walk patients through the 
process of joining a manufacturer’s assistance program. CarePath is one such program. Id. ¶¶ 16, 
64. Plaintiff alleges that by participating in the SaveOnSP Program, patients who utilize CarePath 
breach the CarePath terms and conditions. Plaint iff further alleges that Defendant knows that 
enrolling in the Program violates the CarePath terms and conditions. Id. ¶¶ 48, 65. Defendant 
then electronically bills the inflated copay amount to CarePath. Because the SaveOnSP Program 
increases the copay amount, the SaveOnSP Program drains CarePath’s available funds more 
quickly. Id. ¶¶ 23, 51, 66. CarePath provides several examples of the average amount it pays per 
fill for persons not enrolled in the Program compar ed to those who are: STELARA - $1,171 v. 
$4,301; TREMYA - $1,126 v. $3,717; and UPTRAVI - $418 v. $5,000. Id. ¶¶ 92-94. Plaintiff 
indicates that not only do these higher payments result in CarePath funds being depleted more 
quickly, it also results in a higher percentage of patients reaching the annual limits of the CarePath 
program, sometimes by the middle of the year. Id. ¶¶ 98-99. 
Pharmacists are the paid the same amount for the prescription, so they do not benefit from 
the alleged scheme. Id. ¶ 17. Instead, Defendant and the others participating in the alleged scheme 
split the additional money recovered from Care Path, with Defendant receiving 25% of the 
“savings” received ( i.e., the difference between amount CarePa th would have paid without the 
Program and the amount it paid through the Program). Id. ¶ 68. Plaintiff claims that “SaveOnSP’s 
business model is to drain patient assistance from programs like CarePath by increasing patient 
out-of-pockets costs in a manner that serves no end other than to maximize profits for SaveOnSP 
and its partners.” Id. ¶ 51. PageID:
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Plaintiff filed its two-count Complaint ch allenging the SaveOnSP Program on May 4, 
2022. D.E. 1. Plaintiff asserts a claim for tortious interference with patient’s CarePath contracts 
(Count I) and a claim asserting that the second component of the SaveOnSP program, the patient 
targeting aspect, amounts to a deceptive trad e practice under New York General Business Law 
(“GBL”) § 349 (Count II). Plaintiff seeks mone tary damages and an injunction preventing 
Defendant from implementing the Sa veOnSP Program as to certain of its drugs. Compl. at 41. 
Defendant subsequently filed th e instant motion to dismiss pursuant to Federal Rule of Civil 
Procedure 12(b)(6). D.E. 31. Proposed amici then filed their motions seeking leave to appear in 
support of Plaintiff. D.E. 35, 38. Defendant opposes all three motions. 
II. STANDARD OF REVIEW 
Defendant moves to dismiss for failure to state a claim upon wh ich relief can be granted. 
Fed. R. Civ. P. 12(b)(6). For a complaint to survive dismissal under Rule 12(b)(6), it must contain 
sufficient factual matter to state a cl aim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). A claim is 
facially plausible “when the plai ntiff pleads factual c ontent that allows the court to draw the 
reasonable inference that the defendant is liable for the mis conduct alleged.” Id. Further, a 
plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery will uncover 
proof of her claims.” Connelly v. Lane Constr. Corp. , 809 F.3d 780, 789 (3d Cir. 2016). In 
evaluating the sufficiency of a complaint, distri ct courts must separate the factual and legal 
elements. Fowler v. UPMC Shadyside , 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements of 
the elements of a claim are legal conclusions, and therefore, are not entitled to a presumption of 
truth. Burtch v. Milberg Factors, Inc. , 662 F.3d 212, 224 (3d Cir. 2011) . The Court, however, PageID:
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“must accept all of the complaint’s well-pleaded fact s as true” and give a pl aintiff the benefit of 
all reasonable inferences flowing therefrom. Fowler, 578 F.3d at 210. 
III. ANALYSIS 
 
A. ERISA Preemption 
 
Defendant first argues that Plaintiff’s Complaint must be dismissed because it is expressly 
preempted by Section 514(a) of ERISA. Def. Br. at 9-15. Plaintiff counters that its claims do not 
fall into any of the Section 514(a) preemption categories. Plf. Br. at 12-22. 
“ERISA was enacted ‘to make the benefits promised by an empl oyer more secure by 
mandating certain oversight systems a nd other standard procedures.’” Rutledge v. Pharm. Care 
Mgmt. Ass’n, -- U.S. --, 141 S. Ct. 474, 480 (2020) (quoting Gobeille v. Liberty Mut. Ins. Co., 577 
U.S. 312, 320-21 (2016)). Secti on 514 preemption, or ordinary pr eemption, is an affirmative 
defense that a defendant can assert against a st ate-law based claim that relates to an ERISA 
employee benefit plan. Plastic Surgery Ctr., P.A. v. Aetna Life Ins. Co. , 967 F.3d 218, 226 (3d 
Cir. 2020). The primary concer n for ERISA preemption is “pre -empting laws that require 
providers to structure benefits plans in particular ways, such as by requiring paym ent of specific 
benefits, or by binding plan admini strators to specific rules for de termining beneficiary status.” 
Rutledge, 141 S. Ct. at 480. State law claims that are preempted by Sec tion 514 are typically 
dismissed for failure to state a claim. See, e.g., Sleep Tight Diagnostic Ct r., LLC v. Aetna Inc. , 
399 F. Supp. 3d 241, 250-51 (D.N.J. 2019) (“[C]ourts within this district have consistently 
dismissed claims for breach of contract, quantum meruit, promissory estoppel, and negligence 
when they arise from an ERISA-governed plan on the basis of [Section 514] preemption.”). 
Section 514(a) provides as follows: “the provisions of this title and title IV shall supersede 
any and all State laws insofar as they may now or hereafter relate to any employee benefit plan[.]” PageID:
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29 U.S.C. § 1144(a). “State law” is defined as “all laws, decisions, rules, regulations, or State 
action having the effect of law, of any State.” 29 U.S.C. § 1144(c)(1). State common law claims 
may fall within this definition. Plastic Surgery Ctr. , 967 F.3d at 226. Th e Supreme Court, 
however, limited the seemingly endless reach of S ection 514(a), recognizi ng that “if ‘relate to’ 
were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes pre-
emption would never run its course.” Gobeille, 577 U.S. at 319 (quoting N.Y. State Conf. of Blue 
Cross & Blue Shield Plans v. Travelers Ins. Co. , 514 U.S. 645, 655 (1995)); see also Rutledge , 
141 S. Ct. at 480 (“Crucially, not every state law that affects an ERISA plan or causes some 
disuniformity in plan administration has an imp ermissible connection with an ERISA plan”). 
Thus, the Supreme Court “sought to craft a functional test for express preemption.” Plastic 
Surgery Ctr., 967 F.3d at 226. 
As a result, a claim “relates to” a plan “if it has either (1) a ‘re ference to’ or (2) a 
‘connection with’ that plan.” Id. A state-law claim references an ERISA plan if it “act[s] 
immediately and exclusivel y upon ERISA plans” or is “premised on” the plan. Id. at 230. 
Recently, the Third Circuit “distille[ed] two ov erlapping categories of claims ‘premised on’ 
ERISA plans.” Id. The categories are (a) “claims predicated on the plan or plan administration, 
e.g., claims for benefits due under a plan or where the plan is a critical factor in establishing 
liability” and (b) “claims that involve construction of the plan or require interpreting the plan’s 
terms.” Id. at 230 (internal quotations and punctuat ion omitted). A state-law claim has a 
connection with an ERISA plan if it “require[s] providers to struct ure benefit plans in particular 
ways” and those that have “acute, albeit indirect, economic effects that force an ERISA plan to 
adopt a certain scheme of substantive coverage or effectively restrict its choice of insurers.” 
Rutledge, 141 S. Ct. at 480. “As a shorthand for these considerations,” courts must ask “whether PageID:
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a state law governs a centra l matter of plan administration or interferes with nationally uniform 
plan administration.” Id. (quoting Gobeille, 577 U.S. at 320). 
Plaintiff first argues that its claims are not pr eempted because this ma tter falls outside of 
ERISA’s scope. Plaintiff explains that Section 514(a) does not a pply because the parties are not 
traditional ERISA entities like a plan, plan administrator or beneficiary, such that the relationship 
between Plaintiff and Defendant is not governed by ERISA. Plf. Opp. at 12-14. Plaintiff identifies 
several cases where disputes involving drug ma nufacturers were not preempted by ERISA. See, 
e.g., Blue Cross of Cal. Inc. v. Insys Therapeutics Inc., 390 F. Supp. 3d 996 (D. Ariz. 2019); In re 
Lupron Mktg. & Sales Pracs. Litig. , 295 F. Supp. 2d 148, 179-80 (D. Mass. 2003); In re Pharm. 
Indus. Average Wholesale Price Litig., 263 F. Supp. 2d 172, 190-91 (D. Mass. 2003). But in each 
case, the court considered whether the specific claims raised related to an ERISA plan. The courts 
did not decide the preemption issu e simply based on who asserted the claims or who they were 
asserted against. See, e.g., Blue Cross of Cal. Inc., 390 F. Supp. 3d at 1004 (explaining why each 
of the plaintiff’s claims did not relate to ERISA plans). Further, the Court is not aware of any 
cases limiting ERISA preemption to claims asserted by ERISA entities. See Pharm. Care Mgmt. 
Ass’n v. District of Columbia , 613 F.3d 179, 185 (D.C. Cir. 2010) (“The District points to no 
support for this limitation upon ERISA” that Section 514(a) preemption only applies to 
“relationships among ERISA entities . . . either in ERISA or in any Supreme Court case 
interpreting it.”). 
Whether the parties in the litigation are traditional ERISA entities may impact the 
preemption decision, but Plaintiff fails to demonstrate that it is determinative. In fact, the express 
language of Section 514(a) focuses on the substance of the state law. See 29 U.S.C. § 1144(a). 
Consequently, the Court turns to the Supreme Court’s functional test to determine whether PageID:
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Plaintiff’s claims are preempted, noting that courts should consider an ERISA preemption 
argument “with the starting presum ption that Congress does not in tend to supplant state law.” 
Travelers, 514 U.S. at 654. 
Rutledge v. Pharmaceutical Care Management Association , 141 S. Ct. 474 (2020), is 
instructive. In Rutledge, the Supreme Court considered wh ether Section 514 preempted an 
Arkansas statute that regulated “the price at which pharmacy benefit managers reimburse 
pharmacies for the cost of drugs covered by prescription-drug plans.” Rutledge, 141 S. Ct. at 478. 
A group of PBMs challenged the statute, arguing that it was preempted by ERISA. The Supreme 
Court disagreed, concluding that the statute was not connected to, nor did it reference, any ERISA 
plan. Id. at 479. 
In discussing the impermissible connection prong, the Supreme Court cautioned that “not 
every state law that affects an ERISA plan or causes some disuniformity in plan administration 
has an impermissible connection with an ERISA plan. That is especially so if a law merely affects 
costs.” Id. at 480. What is critical, according to the Rutledge Court, is whether the state law 
“forc[es] plans to adopt any particular scheme of substantive coverage.” Id. The Supreme Court 
explained that the Arkansas statute was a form of cost regulation that would not dictate plan 
choices. Consequently, the Court in Rutledge determined that the statute did not have an 
impermissible connection to an ERISA plan. Id. at 480. As to the “r eference to” prong, the 
Supreme Court explained that the statute “does not act immediately and exclusively upon ERISA 
plans because it applies to PBMs whether or not they manage an ERISA plan” and “does not 
directly regulate health benefit plans at all.” Id. Moreover, the Rutledge Court noted, ERISA plans 
are not essential to the Ar kansas statute’s operation. Id. at 481. The Court therefore concluded 
that the statute did not reference an ERISA plan. Id. PageID:
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Defendant argues that Rutledge is inapposite because Plaintif f’s claims would force plan 
administrators to change plan terms that maximize copay assistance. Def. Br. at 13 n.9. In other 
words, Defendant asserts that Plaintiff’s claims have a connection to an ERISA plan. The Court 
disagrees. Granting relief to Pl aintiff on either claim would not require plan administrators to 
make any plan changes. Alt hough administrators may choose to do away with certain copay 
assistance terms if Plaintiff prevails, this woul d be a business decision that in no way would be 
mandated by the relief awarded. See Travelers, 514 U.S. at 659-60 (explaining that an indirect 
economic influence “does not bind plan administrators to any particular choice and thus function 
as a regulation of an ERISA plan”). Plaintiff’s claims do not mandate certain payments or impose 
any new rules on plan administrators. Plaintif f’s claims, therefore, do not undermine ERISA’s 
objectives to facilitate standard procedures a nd uniformity, and are not connected to an ERISA 
plan for preemption purposes. 
Plaintiff’s claims also do not reference an ERISA plan because they do not act immediately 
and exclusively on an ERISA plan. The Save OnSP Program applies to ERISA and non-ERISA 
plans. Plaintiff’s claims are also not premised on an ERISA plan. The cl aims are not predicated 
on a plan or its administration, and the Court will not need to interpret or construe any plan terms 
to decide either claim. Defendant maintains th at the Court would need to interpret plan terms 
because in determining damages, Plaintiff would need to compar e copays under the current plan 
to copays under its preferred plan design. Def. Br. at 14. But such comparison does not require 
the Court to interpret the meaning of plan provisions. Defendant also argues that the Court would 
be required to look at the plans for Plaintiff’s GBL § 349 claim, to determine whether the drugs 
were covered and the details of coverage and benefit design. Id. at 14-15. Defendant’s argument 
about considering plan terms amou nts to a “cursory examination of the plan,” which is “not the PageID:
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sort of exacting, tedious, or duplic ative inquiry that the preemption doctrine is intended to bar.” 
Plastic Surgery Ctr., 967 F.3d at 233 (quoting Nat’l Sec. Sys., Inc. v. Iola, 700 F.3d 65, 85 (3d Cir. 
2012)). 
B. GBL § 349 
Next, Defendant argues that Plaintiff fails to state a claim under GBL § 349 for numerous 
reasons: Defendant did not deceive participants already enrolled in CarePath, Defendant did not 
cause Plaintiff a cognizable injury, Defendant did not deceive or mislead patients, and Defendant 
did not harm Plaintiff. Def. Br. at 15-25. 
GBL § 349 provides that “[d]eceptive acts or practices in the conduct of any business, trade 
or commerce or in the furnishing of any service in this state are hereby declared unlawful.” N.Y. 
Gen. Bus. § 349. To state a Section 349 claim, a pl aintiff must allege that “(1) the defendant’s 
deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) 
the plaintiff has been injured as a result.” Duran v. Henkel of Am., Inc., 450 F. Supp. 3d 337, 346 
(S.D.N.Y. 2020) (quoting Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir. 2000)). In asserting 
a GBL § 349 claim, a plaintiff must “plead that [it has] suffered an actual injury caused by a 
materially misleading or deceptive act or practice.” City of New York v. Smokes-Spirits.com, Inc., 
911 N.E.2d 834, 839 (N.Y. 2009). The statute is “int entionally broad, applyi ng to virtually all 
economic activity.” Blue Cross & Blue Shield of N.J., Inc. v. Philip Morris USA Inc., 818 N.E.2d 
1140, 1143 (N.Y. 2004) (internal quotation and citation omitted). Moreover, the “statute permits 
recovery by any injured ‘by reason of’ a deceptive business practice.” Id. at 1144 (quoting N.Y. 
Gen. Bus. § 349(h)); see also N. State Autobahn, Inc. v. Progressive Ins. Grp. Co., 953 N.Y.S.2d 
96, 107 (N.Y. App. Div. 2012) (“Turning once more to the plain language of the statute, we note 
that the right to bring a private action was not limited to those acting in a consumer role, but rather, PageID:
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it was provided to ‘any person who has been injured by reason of any violation of this section[.]’” 
(quoting GBL § 349(h)). 
Turning to Defendant’s arguments , the Court first agrees with Plaintiff that it plausibly 
pleads that Defendant deceived participants alre ady enrolled in CarePath. Similarly, the Court 
disagrees with Defendant’s reading that the statute re quires a threat to the health or safety of the 
public at large. While Plaintiff must plausibly allege some harm to the public at large, and while 
a threat to the health or safety of the public is certainly a way to meet this obligation, the statute is 
not limited to health and safety harms. See, e.g., N. State Autobahn, 953 N.Y.S.2d at 105 (finding 
sufficient the alleged public harm that insurance customers were unfairly induced to bring their 
vehicles to other repair shops); see also M.V.B. Collision, Inc. v. Allstate Ins. Co., 728 F. Supp. 2d 
205, 221 (E.D.N.Y. 2010). Plaintiff also plausibly alleges at least two deceptions as to consumers: 
(1) enlisting pharmacies to reject patients’ claims for their prescription at the point of sale, Compl. 
¶¶ 13, 63, 113; and (2) failing to inform patients that by enrolling in SaveOnSP, they breach the 
CarePath terms and conditions, Compl. ¶¶ 113. 
Plaintiff also alleges a sufficient, di rect injury. Defendant, relying on Philip Morris , 
contends that Plaintiff’s injury is derivative. Def. Br. at 16-17. In Philip Morris, the insurance 
company plaintiff alleged that the defendant to bacco companies misrepresented the dangers of 
smoking cigarettes and “engaged in a campaign to encourage consumers to smoke.” Philip Morris, 
818 N.E.2d at 1143. The plaintiff alleged that becau se of the defendants’ conduct, the plaintiff 
insurers bore the increased medica l costs incurred by consumers. Id. The Philip Morris court 
acknowledged that GBL § 349 is a broad, remedial st atute such that it is not limited solely to 
recovery from direct consumers. Id. The court, however, conclude d that the plaintiff insurers 
could not recover because their alleged injury was derivative. The court in Philip Morris explained PageID:
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that under the common law, an insurer’s sole remedy to recover medical expenditures incurred by 
a third-party was through an equitable subrogation claim. The court reasoned that allowing the 
plaintiff’s GBL § 349 claim “would effectively eliminate subrogation actions under section 349—
a result which nothing in the legislative history shows was ever intended.” Id. at 1144. 
“An injury is indirect or derivative when th e loss arises solely as a result of injuries 
sustained by another party.” Philip Morris, 818 N.E.2d at 1145. Here, Plaintiff alleges a direct 
injury because the SaveOnSP Program causes Plaintiff to pay more money from CarePath than it 
otherwise would have to do. Compl. ¶ 115. Unlike in Philip Morris, Plaintiff’s alleged injury is 
not a consumer’s injury that is then passed on to Plaintiff. It is an independent harm separate from 
the injuries that Plaintiff alleges co nsumers will incur from the Program. See id. ¶ 114 (setting 
forth the alleged, separate injury to consumers). Moreover, Plaintiff pleads that the purpose of the 
SaveOnSP Program is to maximize manufacturer’s co-pay assistance program funds like CarePath 
and targets drugs that “have the most lucrative copay assistance programs.” Id. ¶¶ 10-11. The fact 
that Plaintiff’s injuries came after the alleged deceptive conduct does not doom Plaintiff’s claim. 
See, e.g., N. State Autobahn, 953 N.Y.S.2d at 99, 105 (explaining that the plaintiff’s lost business 
because of insurance company’s misrepresentations about the shortcomings of the plaintiff’s 
business to consumers was a sufficient injury). 
 Next, Defendant maintains that Plaintiff fails to sufficien tly allege that Defendant’s 
conduct caused Plaintiff’s injury. Specifically, Defendant points out that Plaintiff has no control 
over the size of the CarePath budget or the plan terms that maximize copay assistance, and that 
these decisions ultimately caused Plaintiff’s alle ged harm. Def. Br. at 17-18. As discussed, 
although the Complaint is vague in terms of who made certain decisions, Plaintiff does allege that 
the SaveOnSP Program is Defendant’s brainchild. See, e.g., Compl. ¶¶ 8-13; 53. Plaintiff alleges PageID:
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that Defendant “works in tandem with its paye r partners” to implement its scheme, and that 
changes to the plan are a critical piece of Defendant’s Program. Id. ¶ 9. These allegations are 
sufficient to allege that Defendant caused Plaintiff’s alleged injury. 
C. Tortious Interference with a Contract 
Finally, Defendant argues that Plaintiff’s tor tious inference claim must be dismissed. To 
state a claim for tortious interf erence with contract, a plaintiff must allege “(1) an existing 
contractual relationship; (2) intentional and malicious interference with that relationship; (3) loss 
or breach of a contract as a result of the in terference; and (4) damages resulting from that 
interference.” DiGiorgio Corp. v. Mendez & Co., 230 F. Supp. 2d 552, 558 (D.N.J. 2002) (citing 
Printing Mart-Morristown v. Sharp Elec. Corp., 563 A.2d 31, 37 (1989)). 
Defendant’s argument is premis ed on the timing of its alle ged interference. Defendant 
argues that it could not have interfered with any contract because when the interference occurred, 
the customers had not yet signed up for CarePath. Because Plaintiff fails to plead the existence of 
a contract when the alleged interference occurre d, Defendant maintains that Plaintiff’s tortious 
interference claim must be dismissed. Def. Br. at 26. The Court disagrees. Plaintiff pleads that a 
patient agrees to meet the CarePath requirement s each time he uses the program. Compl. ¶¶ 48-
49. This means that once enrolled in CarePat h, patients agree under CarePath’s terms and 
conditions not to participate in another offer each time they utilize the co-pay assistance program. 
In fact, Plaintiff pleads that as part of Defendant’s scheme, Defendant “intentionally caus[es] those 
patients to breach their contract with [Plaintiff] every time they use CarePath funds while enrolled 
in the SaveOnSP Program.” Id. ¶ 109. Plaintiff, therefore, sufficiently pleads an existing 
contractual relationship and that Defendant interfered in this relationship. PageID:
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Next, Defendant maintains that the SaveOn SP Program is not an offer. Defendant’s 
arguments are based on the plain la nguage of private health insu rance benefit design plans and 
structure, Def. Br. at 27-28, and Plaintiff’s CarePath contract, id. at 28-29. These are legal 
arguments that are better suited for a motion for summary judgmen t. At the motion to dismiss 
stage, a court must accept a plai ntiff’s allegations as true. Fowler, 578 F.3d at 210. Plaintiff 
plausibly pleads that the SaveOnSP Program is an offer, Compl. ¶ 19, and that the CarePath terms 
and conditions prohibit patients from participating in the SaveOnSP Program, id. ¶ 109. Viewing 
the Complaint in a light most favorable to Plaintiff, Plaintiff adequately pleads that the SaveOnSP 
Program is an offer. Consequently, Plaintiff states a tortious interference with contract claim. 
IV. CONCLUSION 
For the foregoing reasons, and for good cause shown 
IT IS on this 25th day of January, 2023, 
ORDERED that Defendant’s motion to dismiss (D.E. 31) is DENIED; and it is further 
ORDERED that the motions for leav e to file Amicus Curiae briefs (D.E. 35, 38) are 
GRANTED.5 
____________________________ 
 John Michael Vazquez, U.S.D.J. 
 
5 “District Courts may permit third parties to appear in court as amicus curiae where they ‘can 
contribute to the court’s understanding of the’ issues being presented to the court.” United States 
v. Bayer Corp., No. 07-0001, 2014 WL 12625934, at *1 (D.N.J. Oct. 23, 2014) (quoting Harris v. 
Pernsley, 820 F.2d 592, 603 (3d Cir. 1987)). Whether to grant leave to file an amicus brief “rests 
in the discretion of the court which may grant or refuse leave according as it deems the proffered 
information timely, useful or otherwise.” Id. (quoting Cmty. Ass’n for Restoration of Env’t 
(CARE) v. DeRuyter Bros. Dairy , 54 F. Supp. 2d 974, 975 (E.D. Wash. 1999)). Here, the Court 
concludes that the proposed am ici contributed to the Court’s understanding of the public harm 
from Defendant’s Program and considered their amicus briefs. PageID:
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