The Lyngaas II Precedent: Sender Liability for Third-Party Fax Promotions under the TCPA and the “Sufficiently Direct Profit Motive” Standard

Introduction

In Brian J. Lyngaas, D.D.S., P.L.L.C. v. United Concordia Companies, Inc. (“Lyngaas II”), the United States Court of Appeals for the Sixth Circuit revisited the intersection of unsolicited facsimile transmissions and the Telephone Consumer Protection Act of 1991 (TCPA). Dr. Brian Lyngaas, a Michigan dentist, sued United Concordia Companies, Inc. (UCCI)—a large dental-insurance provider—alleging that three faxes UCCI sent to network dentists violated the TCPA’s ban on unsolicited advertisements. The district court granted summary judgment for UCCI, finding that the faxes were not “advertisements” because UCCI’s profit motive was too remote. On appeal, the Sixth Circuit reversed, holding that:

Faxes that promote third-party goods or services constitute “advertisements” when the sender has a sufficiently direct economic interest, even if the sender is not itself the seller; and
TCPA liability attaches to the sender of the fax, not necessarily to the entity whose products appear in it.

This decision deepens the circuit’s TCPA jurisprudence, clarifies the scope of “advertisement,” and creates what will likely be called the “Lyngaas II rule” on indirect profit motives and third-party promotions.

Summary of the Judgment

Applying Fed. R. Civ. P. 56 de novo, the panel (Judge Ritz writing, joined by Chief Judge Sutton and Judge Batchelder) found genuine disputes of material fact and legal error in the district court’s reasoning:

Facial Promotion: The faxes explicitly touted discounted PPE, recycling services, and student-loan refinancing—classic commercial promotions.
Direct Economic Interest: UCCI bargained for exclusive marketing agreements; its intent was to strengthen its provider network and, by extension, its profits. This profit aim was not “ancillary, remote, or hypothetical.”
Sender vs. Seller: Sixth-Circuit precedent places TCPA liability on the entity that actually transmits the fax, even if it advertises someone else’s products.
Scope of Remand: Claims tied to the GradFin fax were dismissed because Lyngaas could not prove receipt; the remaining two faxes proceed on remand.

Judge Batchelder’s concurrence agreed in outcome but maintained that the TCPA text does not require proof of the sender’s profit motive at all—once a fax advertises any commercially available good or service, it is an “advertisement.”

Analysis

1. Precedents Cited

Sandusky Wellness Ctr., LLC v. Medco Health Solutions, Inc., 788 F.3d 218 (6th Cir. 2015)
– Established two-prong test: (i) fax must promote goods/services; (ii) sender must have “profit as an aim.”
– Lyngaas II distinguishes Sandusky, finding UCCI’s economic nexus more direct than the “informational” formularies in Sandusky.
Matthew N. Fulton, D.D.S., P.C. v. Enclarity, Inc., 962 F.3d 882 (6th Cir. 2020)
– Introduced the “commercial nexus” concept; adopted by the court to show UCCI’s agreements connected the faxes and its profit.
Lyngaas v. Curaden AG, 992 F.3d 412 (6th Cir. 2021)
– Held that liability generally falls on the sender, not the manufacturer whose products appear; relied on here to reject UCCI’s “we’re not the seller” defense.
Health One Med. Ctr. v. Mohawk, Inc., 889 F.3d 800 (6th Cir. 2018)
– Reinforced the sender-focused liability theory, cited as analogous authority.
Additional procedural authorities: George v. Youngstown State Univ. (summary-judgment standard), Campfield v. Safelite (cross-motions review).

2. Legal Reasoning

The panel’s reasoning proceeds in two moves:

Definition Stage: Determine whether the fax is an “advertisement.” Relying on textual analysis and dictionary definitions, the court finds the faxes facially promote commercial products.
Profit-Motive Stage: Assess whether the sender’s economic interest is sufficiently direct. UCCI negotiated marketing contracts that exchanged exclusive discounts for access to its dentist network—a quintessential quid pro quo. Therefore, its profit interest is concrete, not speculative.

The court explicitly rejects two defenses:

Altruistic Faxer Hypothetical: Even if a “good-Samaritan coupon-sharer” would not be liable, UCCI’s business contracts prove a direct economic interest.
Remote Seller Rule: Sender cannot evade liability merely by promoting someone else’s goods; Sixth-Circuit precedent places duty squarely on the sender.

Judge Batchelder’s concurrence, while doctrinally narrower, underscores a textualist argument: the word “advertising” already implies commercial intent, making a separate profit-motive inquiry superfluous.

3. Impact on Future Litigation

Expanded Sender Liability: Entities that transmit third-party promos—even loyalty-program benefits, co-branding, or affinity-marketing faxes—now face heightened TCPA exposure in the Sixth Circuit.
Indirect Profit Threshold: Businesses must evaluate whether any indirect financial upside (network retention, enhanced goodwill) can be deemed “sufficiently direct.” The decision lowers the bar for plaintiffs to establish this element.
Possible Circuit Split: The concurrence’s pure-text approach may influence other circuits and fuel Supreme Court interest, especially if circuits diverge on whether “profit motive” is required.
Compliance Practices: Insurers, benefit managers, and other intermediaries should vet fax campaigns under the stricter standard or risk statutory damages of $500 to $1,500 per violation.
Class Action Strategy: Plaintiffs can now target senders of third-party ads without having to link the goods directly to the sender’s core business.

Complex Concepts Simplified

TCPA: A federal statute that among other things prohibits sending unsolicited fax advertisements without consent, carrying statutory damages per fax.
Advertisement (TCPA context): Any material that promotes the commercial availability or quality of goods/services.
Sender vs. Seller: “Sender” is the entity that actually transmits or arranges for transmission; “seller” is the entity whose products are advertised. Liability attaches to the sender.
Profit Motive: A financial benefit that is not merely hypothetical; in Lyngaas II, the benefit was increased network value derived from exclusive marketing deals.
Summary Judgment: A procedural mechanism where the court decides a case (or issue) without trial if there is no genuine dispute of material fact.
Commercial Nexus: A demonstrable link between the advertisement and the sender’s business interests.

Conclusion

Lyngaas II cements an important new rule in Sixth-Circuit TCPA jurisprudence: Sending a fax that promotes third-party goods or services is actionable when the sender stands to gain an identifiable economic advantage, even indirectly. The panel’s analysis clarifies how courts should differentiate between truly informational faxes and commercial solicitations cloaked as “value-add” programs. By affirming sender-focused liability and refining the “profit motive” inquiry, the decision provides a roadmap for litigants and a cautionary tale for businesses that leverage fax technology as a marketing channel. Whether the concurrence’s broader, text-based interpretation gains traction remains to be seen, but for now, companies operating in the Sixth Circuit must treat any promotional fax—regardless of who sells the product—as a potential TCPA landmine.