Third Circuit’s Recent TCPA Decision Has Broader Consumer Protection Implications

American consumers swim in a seemingly boundless sea of prescription drug advertising. These advertisements appear on television and radio, in print, and through increasingly sophisticated targeted digital marketing. While much of this advertising is permissible under the laws and regulations governing prescription drug promotion, there are limits. One such limit is the Telephone Consumer Protection Act (“TCPA”), which Congress passed in 1991 to protect consumers and businesses from abusive telemarketing practices and unwanted communications, including by prohibiting the use of “any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C).

In S.A.S.B. Corp. v. Johnson & Johnson Health Care Systems Inc., No. 25-2302 (3d Cir. Aug. 7, 2026), the Third Circuit, in a precedential opinion, reversed the dismissal of a putative class action alleging that two Johnson & Johnson subsidiaries sent an unsolicited advertisement via fax, in violation of the TCPA. The court held that the plaintiff sufficiently pled facts to allow a reasonable factfinder to determine that the two-page fax was an “unsolicited advertisement” under the statute.

In so ruling, the court addressed an issue with significance beyond the TCPA: information asymmetry in consumer protection litigation. The Third Circuit held that S.A.S.B. Corp. (“SASB”) did not have to specify which defendant allegedly created, authorized, or transmitted the offending fax. That’s because at the pleading stage, a plaintiff who plausibly connects multiple defendants to the challenged conduct and puts each on notice of what it is accused of doing is not required to provide supporting details “peculiarly within” the defendants’ possession. That’s what discovery is for.

An unsolicited “patient support” fax

SASB, a Florida pharmacy, alleged it received a two-page fax that was an unsolicited advertisement promoting the sale of Xarelto, an expensive prescription anticoagulant. Defendant Johnson & Johnson subsidiary Janssen Pharmaceuticals, Inc. (“J-Pharm”) sold Xarelto, while defendant Johnson & Johnson Health Care Systems Inc. (“J-Care”) operated Janssen CarePath (“CarePath”), which it called a “patient support program” offering “savings options and resources at no cost to patients to help them learn about, afford, and stay on their medication.” 

The fax explained that once a patient and doctor had decided Xarelto was appropriate, CarePath would help the patient find resources to “get started and stay on track,” including “options to lower . . . out-of-pocket cost for Xarelto” regardless of insurance coverage. The second page explained the drug’s uses and side effects, and concluded by directing the reader to “[e]xplore savings options” through CarePath.

The fax also contained information about a specific patient, including the patient’s name, the Xarelto prescription, and a prescription identification number. SASB alleged that this patient-specific information had been “apparently merged” into the fax from a “targeting database or list.” That allegation would later become significant to the dispute over who sent the fax; the defendants argued that the inclusion of patient-specific information made the patient’s prescribing physician a more likely sender, while SASB maintained that the fax and surrounding circumstances plausibly pointed to the defendants.

SASB accordingly brought a one-count class action complaint against J-Pharm and J-Care for violating the TCPA’s prohibition on using a fax machine to send an unsolicited advertisement.

The district court dismissed SASB’s original complaint without prejudice on two grounds. First, the court held that the fax did not constitute an advertisement. Second, the court held that SASB had failed to plausibly allege that either defendant sent it. 

SASB then amended its complaint, but the result was the same. This time, the district court rested its dismissal on a single ground: that the fax was not an “advertisement” under the TCPA. It therefore did not reach the defendants’ renewed argument that SASB had failed to adequately allege who sent it. 

An advertisement by any other name

On appeal, the Third Circuit reversed and, in doing so, analyzed not only whether the fax could constitute an advertisement under the TCPA but also whether SASB adequately alleged the sender’s identity to overcome a motion to dismiss.

Beginning with the TCPA’s definition of an “advertisement,” the court noted that the statute covers material “advertising the commercial availability or quality of any property, goods, or services.” Under the court’s own precedents, a fax falls within that definition if it (i) “promote[s] goods or services to be bought or sold” and (ii) has “profit as an aim.” Courts assess each prong objectively and approach the inquiry with “a measure of common sense.” Because the case came to the court at the motion-to-dismiss stage, the question was not whether SASB had established that the fax was an advertisement, but whether the complaint’s allegations made that conclusion “plausible on its face.”

The Third Circuit held they had. The court focused on SASB’s allegations about the price of Xarelto and the function of CarePath. SASB alleged that a month’s supply of Xarelto cost approximately $400, compared with about $20 for a comparable supply of warfarin, an older generic anticoagulant the complaint identified as a substitute, and that CarePath helped reduce patients’ out-of-pocket costs for Xarelto. 

The court analogized promoting a drug by highlighting its affordability to a coupon promoting a product by offering a discount. Those allegations, the court found, supported the inference that a patient who learned about the CarePath program could be more likely to choose Xarelto over cheaper substitutes like warfarin. According to the court, where the fax plausibly promoted Xarelto in such a manner, there was “little doubt” that the promotion had profit “as its aim.”

The Third Circuit disagreed with the district court’s holding that certain words in the fax “lack[ed] a commercial tone.” The Third Circuit ruled that words which, viewed independently, might suggest noncommercial communication could not be considered in a vacuum. 

Thus, words cited by the district court as noncommercial, such as “support,” “help,” “explain,” and “explore,” along with a second page discussing Xarelto’s uses and side effects, did not necessarily render the fax non-promotional. For example, an offer to “help you explore options to lower your out-of-pocket cost” for Xarelto could plausibly “urge” a patient to purchase the drug. Notably, the second page ended by directing the patient back to CarePath for “cost support.” The Third Circuit explained that the defendants “cannot avoid TCPA liability by tacking an informational one-pager onto an unsolicited advertisement.” Considered together, the court found, the allegations plausibly supported the conclusion that the fax promoted Xarelto with profit as an aim. 

As to who sent the fax, the defendants claimed SASB had not plausibly alleged that either was responsible for sending it. Because the fax contained a patient’s name and prescription identification number, they contended that the patient’s physician was the more likely sender. But the Third Circuit emphasized that the plausibility standard is not akin to a “probability requirement.” Here the complaint alleged “in no uncertain terms” that “Defendants (or somebody acting on their behalf) sent a two-page advertisement to Plaintiff’s fax machine.” At the pleading stage, the court explained that its role was not to identify the most likely sender, but to determine whether SASB’s allegations identifying the defendants as responsible for the fax were plausible. 

The Third Circuit ruled they were, noting that the fax displayed the Xarelto and CarePath names and logos, spoke to the reader in CarePath’s first-person “voice,” and contained patient-specific information that SASB alleged had been “apparently merged from a targeting database or list.” The defendants nevertheless argued that SASB could have pled additional details from the fax’s cover sheet or a fax log that might have shed further light on its origin. 

The court rejected that argument, refusing to impose a heightened pleading standard than Federal Rule of Civil Procedure 11(b)’s requirement that SASB’s counsel investigate its client’s claims, and refusing to assume that SASB had access to a fax cover sheet or log revealing the sender and had simply left it out. According to the court, SASB’s account did not need to be the most likely explanation to survive dismissal; again, it needed only to be plausible. The court also noted that SASB had alleged facts undercutting the defendants’ alternative theory: the prescribing doctor was located in the Eastern Time Zone, while the fax header indicated the fax had been sent from the Central Time Zone.

Finally, the court rejected defendants’ related argument that SASB had improperly attributed conduct collectively to the two J&J subsidiaries rather than identifying which specific one had created, authorized, or transmitted the fax. The court held that Federal Rule of Civil Procedure 8 required allegations sufficient to put each defendant on notice of the conduct attributed to it, and SASB had met that standard because both defendants were J&J subsidiaries, and the complaint put each on notice that SASB accused it of sending the fax, which, the court said, “is all Rule 8 requires in this context.” 

The court then went a step further. SASB acknowledged it did not know, but was seeking discovery to determine, the relevant “division of responsibility” between the defendants. Citing Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 107 n.31 (3d Cir. 2015), the Third Circuit explained it would accept “incomplete allegations” where the missing information was “peculiarly within the defendant’s possession.” Thus, SASB was not required to know before discovery precisely how responsibility was divided within defendants’ corporate operations. Because the court found SASB’s allegations “specific enough to get past the pleading stage,” SASB was entitled to take discovery to determine the defendants’ respective roles in sending the fax at issue.

A TCPA decision with implications for consumer protection litigation generally?

The Third Circuit’s decision here is important for TCPA cases. When determining whether an unsolicited communication plausibly constitutes an “advertisement” under the TCPA, the whole may be greater than the sum of its parts. Individual words or statements that, standing alone, might appear noncommercial must be viewed in context, with “a measure of common sense.” Where the communication could plausibly be understood to “promote goods or services to be bought or sold” and to have “profit as an aim,” a plaintiff has adequately pled that the communication is an “advertisement” under the TCPA and may proceed beyond the motion-to-dismiss stage, assuming they properly allege the communication was unsolicited.

The decision’s less prominent point may matter more for consumer litigation generally. Consumers and small businesses like SASB frequently confront an information imbalance when alleging a violation of a consumer protection statute. They may know what happened to them but, absent discovery, not know which corporate entities were responsible for that alleged misconduct. 

The court’s decision in S.A.S.B. reaffirms that the federal “plausibility” pleading standard set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), does not require plaintiffs to fill such informational gaps with facts available only to the defendants. Where a plaintiff has alleged sufficient facts to make a defendant’s involvement plausible, the absence of details “peculiarly within the defendant’s possession” does not necessarily warrant dismissal. Discovery may instead provide the means to determine the defendants’ respective roles. Claims sounding in fraud, however, must satisfy Rule 9(b)’s particularity requirement and present a harder question, but the Third Circuit has long relaxed that requirement where the relevant facts are peculiarly within the defendant’s control. See In re Craftmatic Sec. Litig., 890 F.2d 628 (3d Cir. 1989).

This should be welcome news for consumers and their attorneys facing the familiar problem of weaving a factual tapestry when some essential threads remain in defendants’ hands. S.A.S.B. does not lower the plausibility standard or excuse pleading without proper investigation. Rather, it applies that standard realistically: plausibility is not probability; counsel’s Rule 11 obligations weigh against assuming a plaintiff is withholding facts it could have pled; and affiliated defendants cannot demand that a plaintiff explain their internal division of labor before discovery. On that last point, the Third Circuit’s decision here reaffirms that a defendant with superior access to key relevant facts should not be entitled to dismissal of claims against it because a plaintiff cannot allege the defendant’s internal division of responsibility without access to information the plaintiff has no reasonable access to before discovery.

John Soumilas is a partner at Francis Mailman Soumilas, P.C., a leading consumer rights law firm. He can be reached at jsoumilas@consumerlawfirm.com.

Reprinted with permission from the October 30, 2026, edition of The Legal Intelligencer ©️ 2026 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.