Antitrust Law Daily Wrap Up, ADVERTISING—3rd Cir.: Pharmacy’s suit against Johnson & Johnson subsidiaries over unsolicited fax reinstated, (Aug 12, 2026)

By Brian Craig, J.D.

The district court erred in determining that the fax sent to the pharmacy was not an unsolicited advertisement under the Telephone Consumer Protection Act.

Concluding that a fax could reasonably be construed as an unsolicited advertisement, the federal appeals court in Philadelphia has reinstated a proposed class-action lawsuit alleging violations of the Telephone Consumer Protection Act (TCPA) against two Johnson & Johnson subsidiaries. In reversing dismissal of the complaint by the federal district court in New Jersey, the U.S. Court of Appeals for the Third Circuit held in the precedential decision that a pharmacy plausibly alleges that the two-page fax urging the purchase of the drug Xarelto constitutes a single unsolicited advertisement (S.A.S.B. Corp. v. Johnson & Johnson Health Care Systems Inc., No. 25-2302 (3d Cir. Aug. 7, 2026)).

A pharmacy in Florida, S.A.S.B. Corp. doing business as Okeechobee Discount Drug, alleges that two Johnson & Johnson (“J&J”) subsidiaries sent an unsolicited two-page advertisement to its fax machine in violation of the Telephone Consumer Protection Act (“TCPA”) promoting purchase of the drug Xarelto. The named defendant J&J subsidiaries include Johnson & Johnson Health Care Systems Inc. and Janssen Pharmaceuticals Inc. The pharmacy brought a proposed class-action lawsuit in the federal district court in New Jersey. The district court dismissed the complaint, finding that the two-page fax is not an advertisement. The pharmacy appealed.

Unsolicited advertisement. The Third Circuit held that the pharmacy plausibly alleges that the two-page fax urging the purchase of the drug Xarelto constitutes a single unsolicited advertisement in violation of the TCPA. The TCPA defines an “advertisement” as any material advertising the commercial availability or quality of any property, goods, or services. The Third Circuit has set out two conditions a fax must meet to qualify under that definition. First, the fax must promote goods or services to be bought or sold. Second, the fax must have profit as an aim. The court uses an objective standard to assess both prongs.

Here, the appeals court found that a reasonable fact finder could determine that the fax promotes Xarelto with profit as an aim. For example, a sentence on the fax’s first page reads “[w]e can help you explore options to lower your out-of-pocket cost for Xarelto.” Another sentence states that “[n]o matter what type of insurance you have—or even if you don’t have insurance—Janssen CarePath can help explain your medication insurance coverage and potential out-of-pocket costs and help find programs that may help you pay for Xarelto.” By promising to direct the customer to financial support for the drug, these sentences plausibly urge the purchase of” Xarelto by emphasizing its affordability. While in isolation, the second page appears informational, rather than promotional, in nature. But a party cannot avoid TCPA liability by tacking an informational one-pager onto an unsolicited advertisement. And the second page concludes by reminding the reader about the Janssen CarePath offering, referring to Janssen as “your partner for cost support.” Thus, the complaint plausibly alleged that the two pages, taken together, constitute a single unsolicited advertisement.

Senders of the fax. The Third Circuit also concluded that the complaint plausibly alleges that the two J&J subsidiaries sent the fax. The fax speaks refers to Janssen in the first person stating: “At Janssen, we don’t want cost to get in the way of treatment you need.” The fax displays the registered trademark and logo for Xarelto and the tradename and logo for Janssen CarePath. The complaint alleges that “Defendants (or somebody acting on their behalf) sent a two-page advertisement to Plaintiff’s fax machine.” The panel rejected the argument to impose a heightened pleading requirement to include information in the complaint about the fax cover sheet or fax log showing who might have sent the fax. The allegations are sufficient to nudge the claim across the line from conceivable to plausible.

Adequate notice. Finally, the appeals court held that the complaint gives the J&J subsidiaries adequate notice to the J&J subsidiaries. The allegations are specific enough to get past the pleading stage and take discovery to determine the sender of the fax. Both named defendants in the complaint are subsidiaries of J&J. The complaint puts the subsidiary companies both on notice that the pharmacy accuses each of them of sending the fax. The complaint puts the defendant on adequate notice of the conduct attributed to. each of them. Therefore, the Third Circuit reversed the decision of the district court granting dismissal of the case.

The Case is No. 25-2302.

Judge: Ambro, T.

Attorneys: Jeffrey A. Berman (Bock Hatch & Oppenheim) for S.A.S.B. Corp. d/b/a Okeechobee Discounts Drugs. Jennifer G. Chawla (Faegre Drinker Biddle & Reath) for Johnson & Johnson Health Care Systems Inc.

Companies: S.A.S.B. Corp. d/b/a Okeechobee Discounts Drugs; Johnson & Johnson Health Care Systems Inc.

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