Third Circuit “Clear Indication” Rule: Bench Warnings Can Trigger Undue Delay for Post-Judgment Amendment; Medical-Pixel Disclosure Suffices for Article III Standing Without Itemizing Conditions

I. Introduction

In Patrick Santoro v. Tower Health (3d Cir. Aug. 28, 2026), patients Patrick Santoro and Jessica Landis filed a putative class action alleging that Tower Health embedded Meta Pixel on its website, thereby intercepting and transmitting patients’ personally identifying information and health-related communications (including health conditions, treatments, and medications) to Meta for commercial use.

Plaintiffs asserted claims under the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2510 et seq., as well as state-law negligence and intrusion upon seclusion. They framed the ECPA theory as turning on an alleged unlawful disclosure of HIPAA-protected information. The District Court dismissed the Second Amended Complaint (“SAC”) with prejudice for lack of pleading specificity and denied reconsideration (with a proposed Third Amended Complaint (“TAC”)) on the ground of undue delay.

On appeal, the Third Circuit (1) confirmed Article III standing based on the alleged surreptitious disclosure of confidential medical information, and (2) affirmed the dismissal with prejudice and denial of post-judgment leave to amend, emphasizing that a district court’s clear, pre-ruling bench signals of pleading deficiencies can require a plaintiff to seek amendment promptly—and failure to do so can support a finding of undue delay.

II. Summary of the Opinion

  • Standing: Plaintiffs adequately alleged a concrete injury. The alleged disclosure of confidential medical information to a third party is closely analogous to the common-law tort of intrusion upon seclusion, and Plaintiffs need not identify the specific medical facts disclosed to establish injury in fact.
  • Merits not reached: Plaintiffs did not argue on appeal that the SAC actually stated a claim under Rule 12(b)(6). The court therefore took no position on whether the SAC would have survived dismissal.
  • Dismissal with prejudice affirmed: Plaintiffs did not properly request leave to amend before dismissal because they did not submit a draft amended complaint; conditional remarks at oral argument were insufficient under circuit rules for non-civil-rights cases.
  • Post-judgment amendment denied for undue delay: Although defendants’ repeated dismissal arguments and other district courts’ rulings generally do not constitute notice that a complaint is deficient, the District Court’s oral-argument colloquy here provided an unusually clear “explanation” of how it intended to rule. Plaintiffs’ failure to seek amendment promptly after that “clear indication,” and waiting until after dismissal, supported denial of leave to amend.

III. Analysis

A. Precedents Cited

1. Standing and privacy harms

  • Seneca Res. Corp. v. Township of Highland — Cited for the appellate court’s independent duty to assure itself of subject matter jurisdiction, including standing.
  • Cook v. Gamestop, Inc. — Prompted the standing inquiry; the court treated “injury in fact” as the only disputed standing element here.
  • Spokeo, Inc. v. Robins — Supplied the modern framework: injury must be “concrete and particularized” and “actual or imminent,” and intangible injuries can qualify if sufficiently concrete.
  • In re BPS Direct, LLC; Cabela's, LLC Wiretapping Litig. — Central to the court’s method for “intangible” privacy injuries: the “close historical or common-law analogue” test and comparison to a “comparator tort” (here, intrusion upon seclusion). Also used to illustrate that certain sensitive data (like full card numbers) can be “highly sensitive,” making privacy invasion concrete for standing purposes.
  • Restatement (Second) of Torts § 652B (1977) (“Second Restatement § 652B”) — Provided the definition of the comparator tort, intrusion upon seclusion, including the “highly offensive to a reasonable person” requirement and the concept that the harm arises when private seclusion is invaded.
  • United States v. Westinghouse Elec. Corp. and Doe v. Delie — Reinforced the Third Circuit’s longstanding recognition that medical information is ordinarily within an individual’s “private enclave” and implicates an interest in avoiding disclosure of personal matters.
  • Trammel v. United States — Used to underscore the “imperative need for confidence and trust” in communications with professionals, here supporting the sensitive nature of patient-provider communications.
  • Barclift v. Keystone Credit Servs., LLC — Cited to support the proposition that certain unauthorized disclosures can be concrete privacy injuries; also cited early for the standard of accepting pleaded facts as true on a motion to dismiss.
  • DaimlerChrysler Corp. v. Cuno — Noted the principle that a plaintiff must establish standing for each claim pressed, though the court treated the analysis as common across claims because the alleged injury was the same.

2. Pleading, amendment, and post-judgment practice

  • Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc. — The key procedural rule: in non-civil-rights cases, a plaintiff must properly request leave to amend by submitting a draft amended complaint; informal or conditional requests do not satisfy the “settled rule.”
  • Anderson v. Ayling — Provided the standard of review: dismissal under Rule 12(b)(6) is generally de novo, but dismissing with prejudice is reviewed for abuse of discretion.
  • Cureton v. Nat'l Collegiate Athletic Ass'n — Explained that when a timely Rule 59(e) motion seeks to reopen judgment and amend, the Rule 15 and Rule 59 inquiries “turn on the same factors.”
  • United States ex rel. Customs Fraud Investigations, LLC. v. Victaulic Co. — The opinion’s most important guidance on “notice” and “undue delay.” It cautions that plaintiffs usually cannot be expected to infer deficiencies from bench comments or opposing arguments (“read tea leaves”), but it also recognizes exceptions where the court provides a clear indication of how it intends to rule.
  • In re Adams Golf, Inc. Securities Litigation and Jang v. Boston Scientific Scimed, Inc. — Presented the “wait-and-see” theme; the panel then emphasized that Victaulic later limited reliance on Jang’s dictum and clarified how “notice” should be assessed.
  • Bechtel v. Robinson — Used (via Victaulic’s discussion) to illustrate that prompt amendment after receiving new facts or actual notice weighs against undue delay.

B. Legal Reasoning

1. Standing: confidential medical disclosure as a concrete injury

The panel treated Plaintiffs’ alleged harm as an “intangible” privacy injury and asked whether it closely resembled a historically recognized harm. Relying on In re BPS Direct, LLC; Cabela's, LLC Wiretapping Litig. and Second Restatement § 652B, it accepted intrusion upon seclusion as the appropriate analogue: Plaintiffs alleged that, as patients, they communicated private health information to Tower Health, and Tower Health then surreptitiously shared that individually identifiable health information with Meta via Meta Pixel.

Critically, the court rejected Tower Health’s argument that Plaintiffs needed to identify the exact medical details disclosed to establish standing. The point for injury in fact was the nature of the interest invaded—confidential medical information in the patient-provider setting—supported by United States v. Westinghouse Elec. Corp. and Doe v. Delie.

The court also disposed of a voluntariness objection: disclosure to one’s healthcare provider does not negate injury from alleged disclosure to Meta without authorization. The alleged wrong was not Plaintiffs’ voluntary communication to Tower Health; it was Tower Health’s alleged unauthorized onward disclosure.

Notably, the panel cabined its standing holding: it emphasized that standing does not decide Rule 12(b)(6) sufficiency, echoing In re BPS Direct, LLC; Cabela's, LLC Wiretapping Litig. that comparator-tort breadth does not determine liability’s limits (e.g., “highly offensive” and substantial interference requirements).

2. Merits posture: Plaintiffs did not defend the SAC under Rule 12(b)(6)

Even though Plaintiffs appealed the dismissal order, they did not argue that the SAC met Rule 12(b)(6). The panel therefore treated the appeal as focused on a narrower question: whether the District Court abused its discretion by (a) dismissing with prejudice and (b) denying post-judgment leave to amend. This framing mattered: the Third Circuit affirmance leaves unanswered whether SAC-style allegations could state an ECPA/HIPAA-based theory if pleaded with more specificity.

3. Dismissal with prejudice: failure to properly request amendment before judgment

Applying Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., the court held Plaintiffs did not properly request leave to amend before dismissal because they did not submit a draft amended complaint. Their conditional oral-argument statement (“we’re able to do that and we’d like an opportunity”) was insufficient—particularly where they continued to insist amendment was unnecessary and did not indicate they could meet the judge’s broader concern about the “scope” of information disclosed.

4. Post-judgment amendment: “clear indication” from the bench can trigger undue delay

After judgment, Plaintiffs proceeded via a Rule 59(e) motion with an attached TAC—procedurally permissible under Fletcher-Harlee—but the District Court denied leave based on undue delay. The Third Circuit’s affirmation is the opinion’s principal procedural contribution.

The panel carefully separated three potential sources of “notice” of deficiencies:

  1. Defendant’s motion-to-dismiss arguments: Not enough. A plaintiff is not required to revise pleadings merely because the opponent insists they are defective; otherwise, defendants would control amendment timing. The court cited United States ex rel. Customs Fraud Investigations, LLC. v. Victaulic Co. for the proposition that courts should not penalize plaintiffs for declining to alter pleadings based solely on adversarial assertions.
  2. Other district courts’ dismissals of similar claims: Not enough. Such rulings do not bind the parties or the court, and the District Court did not cite a governing appellate decision adopting those other courts’ reasoning.
  3. Oral argument in this case: Enough here. While Victaulic warns that bench questions and comments often do not provide “a clear indication,” the panel found an exception: the District Court repeatedly emphasized the lack of specificity, explicitly “show[ed] [its] cards,” and agreed that the case lacked facts to discuss. This constituted a pre-ruling “explanation” of how the court intended to rule.

Given that clarity, the Third Circuit held it was reasonable to expect Plaintiffs to seek leave to amend promptly after oral argument—rather than waiting until after the dismissal order—especially because Plaintiffs had already amended twice. The eight-week lag (including two weeks after dismissal) supported the District Court’s undue delay finding.

C. Impact

1. Privacy-tech litigation (Meta Pixel and similar tools): standing is easier than merits

The standing discussion strengthens plaintiffs’ ability—at least in the Third Circuit—to establish injury in fact for claims premised on alleged covert sharing of confidential medical information with an ad-tech intermediary. The panel’s key move is that standing does not require itemizing specific conditions or treatments disclosed when the alleged disclosure is of confidential medical communications in a patient-provider context.

At the same time, the case illustrates a sharp divide between standing and stating a claim: the District Court dismissed for “bare-bones” allegations regarding what data was actually transmitted, and the Third Circuit did not disturb that merits conclusion because Plaintiffs did not contest it on appeal.

2. Civil procedure: a practical “act promptly after clear bench warning” rule

The most durable operational takeaway is procedural. When a district judge gives an unusually explicit, pre-ruling warning that the complaint is deficient and suggests dismissal with prejudice is likely, a plaintiff who intends to add facts that are already available should treat that moment as a trigger to seek leave to amend promptly. Waiting to see the written dismissal can support an “undue delay” denial of post-judgment amendment, even under Rule 15’s liberal standard as incorporated through Rule 59(e).

The opinion also reinforces Fletcher-Harlee’s drafting requirement: in non-civil-rights cases, meaningful leave-to-amend requests generally require submission of a proposed amended pleading—informal oral statements are not enough.

IV. Complex Concepts Simplified

  • Meta Pixel (tracking code): Code embedded on a website that can collect information about what a user does on the site (pages visited, clicks, URLs) and identifiers (e.g., IP address), and transmit it to a third party for analytics/advertising.
  • ECPA (wiretap statute) theory in this case: Plaintiffs alleged that the Pixel “intercepted” communications and that Tower Health did so for an unlawful purpose tied to improper disclosure of health information.
  • HIPAA’s role: HIPAA is principally a regulatory and criminal enforcement regime; plaintiffs often invoke HIPAA-related duties/definitions to frame what counts as protected health information and what conduct is wrongful, even when HIPAA does not itself supply a private cause of action.
  • Article III standing: The constitutional requirement that a plaintiff show a concrete, personal injury traceable to the defendant and redressable by the court. For privacy harms, courts often ask whether the alleged injury resembles a traditional privacy tort.
  • Intrusion upon seclusion: A privacy tort covering an intentional intrusion into someone’s private affairs that would be highly offensive to a reasonable person. The Third Circuit used it as an analogue for determining whether the alleged privacy invasion is “concrete.”
  • Rule 12(b)(6): The motion to dismiss for failure to state a claim. It tests whether the complaint pleads enough specific facts to make a claim plausible.
  • Rule 15 / Rule 59(e) after dismissal: After a dismissal with prejudice, a plaintiff typically must move to reopen or alter the judgment under Rule 59(e) and, in that posture, ask for leave to amend under Rule 15. Courts consider factors like undue delay, prejudice, bad faith, or futility.
  • “Undue delay”: Not mere passage of time; it is delay that is unjustified in the circumstances—here, measured against when plaintiffs had clear notice of deficiencies and whether the new facts were available earlier.

V. Conclusion

Patrick Santoro v. Tower Health delivers two important messages. First, for standing purposes, alleged covert disclosure of confidential medical communications from a healthcare provider to an ad-tech company is a concrete privacy injury analogous to intrusion upon seclusion—even without pleading the exact medical conditions disclosed. Second, on amendment practice, the Third Circuit affirms that while plaintiffs ordinarily need not “read tea leaves,” an unusually explicit oral-argument warning can be a “clear indication” that triggers an obligation to seek amendment promptly; waiting until after dismissal may justify denial of post-judgment leave to amend for undue delay. The decision thus both lowers the standing hurdle in medical web-tracking cases and raises the procedural stakes of in-hearing judicial guidance about pleading deficiencies.