                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                       No. 19-1470
                                     ______________

                         ROBERT W. MAUTHE M.D., P.C.,
                  a Pennsylvania Corporation, Individually and as the
                 Representative of a Class of Similarly-Situated Persons,

                                                               Appellant
                                             v.

                              SPREEMO, INC.;
                  THE HARTFORD FINANCIAL SERVICES GROUP
                              ______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. Civ. No. 5-18-cv-01902)
                       District Judge: Honorable Chad F. Kenney
                                    ______________

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                   March 24, 2020

         BEFORE: JORDAN, RESTREPO and GREENBERG, Circuit Judges.

                                 (Filed: March 25,2020)
                                    ______________

                                       OPINION*
                                     ______________


____________________

*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
GREENBERG, Circuit Judge.

                                  I.      INTRODUCTION

       This matter comes on before this Court on the appeal of Plaintiff-Appellant Robert

W. Mauthe, M.D., P.C. (“Mauthe”), challenging the District Court’s order of January 28,

2019, under Fed. R. Civ. P. 12(b)(6) dismissing its case under the Telephone Consumer

Protection Act, 47 U.S.C. § 227 (“TCPA”), against defendants Hartford Financial

Services Group, Inc., a health insurance provider, and Spreemo Inc., a medical diagnostic

services vendor, for their allegedly illegal transmission of an unsolicited fax to Mauthe.

Mauthe v. Spreemo, No. 18-1902, 2019 WL 342715 (E.D. Pa. Jan 28, 2019). On March

28, 2019, two months after the District Court dismissed this case, we issued a

precedential opinion construing the TCPA that is controlling here. Mauthe v. Optum,

tInc., 925 F.3d 129 (3d Cir. 2019). For the reasons stated below, we will reverse the

order of dismissal and remand the case to the District Court for further proceedings.



                            II.        FACTUAL BACKGROUND

       The relevant document that we consider in this case, as was also true in Optum, is

the fax itself—a single page that defendants sent to plaintiff by fax. The fax recited “that

Spreemo is the ‘Primary Diagnostic Vendor’ for Hartford.” Spreemo, 2019 WL 342715,

at *2. We need not go beyond considering the fax in deciding this case so we do not set

forth the facts of the case at length.




                                             2
                            III.    STANDARD OF REVIEW

       We review de novo a district court’s dismissal under Rule 12(b)(6) for failure to

state a claim upon which relief may be granted. Geness v. Cox, 902 F.3d 344, 353-54 (3d

Cir. 2018). In determining whether a plaintiff has stated a claim under Rule 12(b)(6),

“we accept all well-pleaded allegations as true and draw all reasonable inferences in

favor of the plaintiff. However, we disregard threadbare recitals of the elements of a

cause of action, legal conclusions, and conclusory statements.” City of Cambridge Ret.

Sys. v. Altisource Asset Mgmt. Corp., 908 F.3d 872, 878-79 (3d Cir. 2018) (internal

quotations and citations omitted). “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.” Zuber v. Boscov’s, 871 F.3d 255, 258

(3d Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949

(2009)).



                                   IV.    DISCUSSION1


1
  Defendants move to dismiss this appeal for lack of appellate jurisdiction, contending
that Mauthe did not file a timely notice of appeal. The initial notice of appeal, which the
parties agree that Mauthe timely filed on the last day to appeal, listed “Robert W.
Mauthe” as the appellant. Mauthe then filed an amended notice the next day properly
naming “Robert W. Mauthe, M.D., P.C.” as the appellant. As Robert W. Mauthe, the
individual, was never a party to this lawsuit, defendants argue that the initial timely
notice of appeal was defective and invalid, and the the untimely amended notice of
appeal did not confer appellate jurisdiction on this Court. We will deny the motion to
dismiss for lack of jurisdiction because the initial notice of appeal listing “Robert W.
Mauthe” as the appellant unquestionably provided defendants with the necessary notice
required by Rule 3(c) of the Federal Rules of Appellate Procedure, given that Robert W.
Mauthe, M.D., P.C. was the only named plaintiff in this lawsuit. See In re Continental
                                             3
       The TCPA makes it “unlawful for any person within the United States, or any

person outside the United States if the recipient is within the United States . . . to use 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). The TCPA defines

an “unsolicited advertisement” as “any material advertising the commercial availability

or quality of any property, goods, or services which is transmitted to any person without

that person’s prior express invitation or permission, in writing or otherwise.” Id. §

227(a)(5). As we held in Optum, “to be an ad, the fax must promote goods or services to

be bought or sold, and it should have profit as an aim.” 925 F.3d at 133. “[T]here must

be a nexus between the fax and the purchasing decisions of an ultimate purchaser.” Id.

       We also held in Optum that the offending fax need not be sent to a direct

purchaser. “An example of a possible TCPA violation by the sending of a fax to an entity

other than a possible direct purchaser of the sender’s product or services is a fax sent to a

doctor encouraging the doctor to prescribe a particular drug to the doctor’s patients who,

rather than the doctor, are the likely purchasers of the sender’s product.” Id. To establish

such third-party based liability under the TCPA, we held “a plaintiff must show that the

fax: (1) sought to promote or enhance the quality or quantity of a product or services

being sold commercially; (2) was reasonably calculated to increase the profits of the




Airlines, 125 F.3d 120, 129 (3d Cir. 1997) (“[M]ere technicalities should not stand in the
way of consideration of a case on its merits.” (quoting Torres v. Oakland Scavenger Co.,
487 U.S. 312, 316, 108 S.Ct. 2405, 2408 (1988)).

                                              4
sender; and (3) directly or indirectly encouraged the recipient to influence the purchasing

decisions of a third party.” Id.

       With the above principles in mind, we conclude that the District Court erred in

dismissing the case. Because the Court did not have the benefit of our decision in Optum

when it decided this case, it could not have known about the theory of third-party based

liability that we explained in Optum. All three elements for third-party based liability are

met in this case, at least as alleged and judged at the pleading stage. As was the case in

Optum, and likely the vast majority of third-party based liability cases, it should be

reasonably obvious that the fax met the first two elements—it was sent to promote the

availability of services, and was done with a profit motive.2 The deciding factor,

therefore, is whether the fax was sent to encourage Mauthe to influence the purchasing

decisions of a third party. Construing the pleading in the light most favorable to the

plaintiff, it has sufficiently pled a third-party based liability claim.

       We see very little distinction between this case and the doctor-patient example we

articulated in Optum; indeed, the fax here was sent to a medical doctor. The District

Court found that the fax was sent merely for informational purposes, Spreemo, 2019 WL

342715, at *2, but at the pleading stage it is plausible that the fax was sent to encourage a




2
  Defendants argue that the first two elements were not met because there was no
allegation that either Spreemo or Hartford charges a fee to anyone who schedules a test
through Spreemo. Their observation does not change our result as Spreemo undoubtedly
charges Hartford a fee for its services, so it stands to benefit anytime a doctor utilizes its
services on behalf of a patient insured by Hartford.
                                                5
doctor to send patients to Spreemo whenever diagnostic testing is prescribed. 3 Nothing in

the fax informed or suggested to the recipient that it must direct patients covered by

Hartford to Spreemo for diagnostic testing, so the choice remained with the doctor as to

whom to send patients for testing, and the fax can be considered as an attempt to

influence that choice, with the patients being the ultimate purchasers of the diagnostic

services.4

       At the pleading stage, Mauthe merely needs to plead the plausible. See Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 1965 (2007). Accordingly, we

will reverse the District Court’s January 28, 2019 order dismissing the case, and will

remand the matter for further proceedings. In rendering this decision, we express no

opinion as to the viability of Mauthe’s class action claims.




3
  By way of example, suppose a soft drink manufacturer sends a fax to all athletic teams
in a league informing them that its product is the official soft drink of the league. There
can be very little doubt that such fax is an advertisement to encourage the teams to
purchase the manufacturer’s product.
4
 We reject defendants’ argument that the fax did not violate the TCPA because Hartford,
not the patients, is the ultimate purchaser of Spreemo’s services. If we accept
defendants’ argument, then the doctor-patient example in Optum would be invalid, as
most drugs prescribed by doctors are also “paid for” by insurance companies.
Furthermore, when Hartford pays for the services it is acting on behalf of the patients
who utilize the services.
                                             6
