author: SELYA, Circuit Judge.

text:
    Peter ALFANO, Plaintiff, Appellant, v. Thomas LYNCH, Defendant, Appellee.
    No. 16-1914
    United States Court of Appeals, First Circuit.
    February 1, 2017

      David Milton, with whom Howard Friedman and Law Offices of Howard Friedman, P.C., Boston, MA, were on brief, for appellant.
    Alexandra R. Hassell, with whom Douglas I. Louison and Louison, Costello, Con-don & Pfaff, LLP were on brief, for appel-lee.
    Before KAYATTA, Circuit Judge, SOUTER, Associate Justice, and SELYA, Circuit Judge.

       Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation.

   SELYA, Circuit Judge.

The doctrine • of qualified immunity shields from liability public officials, including police officers, whose conduct does not violate clearly established federal statutory or constitutional rights. It is a strong, but not impenetrable, shield. After careful consideration of the record in this case, viewed in the light most favorable to the plaintiff, we conclude that qualified immunity is not available: given the state of the preexisting law, the unconstitutionality of a police officer’s actions in taking a person into protective custody, handcuffing that person, transporting him to a police station, and jailing him without probable cause to believe that he is incapacitated should have been apparent. Consequently, we vacate the district court’s entry of summary judgment in the defendant’s favor and remand the case for further proceedings consistent'with this opinion.

I. BACKGROUND

Inasmuch as the court below resolved this case at the summary judgment stage, we rehearse the facts in the light most favorable to the nonmovant (here, the plaintiff), consistent with record support. See DePoutot v. Raffaelly, 424 F.3d 112, 114 (1st Cir. 2005).

On the morning of July 11, 2014, plaintiff-appellant Peter Alfano and two friends set out to attend a concert at the Xfinity Center in Mansfield, Massachusetts. They travelled to Mansfield on a chartered bus that provided round-trip transportation from downtown Boston to the concert venue. The threesome consumed beers both on the bus and at a tailgate party upon their arrival. All told, Alfano (by his own admission) drank between six and eight beers over a span of some four to six hours.

When it came time for the concert to begin, Alfano and his friends made their way to a security checkpoint at the entrance of the amphitheater. Alfano was feeling the effects of the alcohol that he had consumed, but he did not feel out of control. As he reached the checkpoint, two security guards asked him to step out of the line and escorted him to a separate holding area on the Xfinity Center property. There, Alfano was turned over to defendant-appellee Thomas Lynch, a lieutenant from a neighboring town’s police department, who was working a security detail at the Xfinity Center. According to Lynch, the security guards told him that they thought that Alfano might be incapacitated and, thus, took him aside for further scrutiny.

Massachusetts law permits police officers to take “incapacitated” persons into civil protective custody. Mass. Gen. Laws ch. 111B, § 8; see id. § 3 (specifying, as pertinent here, that an “[incapacitated” person is one who is both intoxicated and, “by reason of the consumption of intoxicating liquor is ... likely to suffer or cause physical harm or damage property”). To evaluate whether Alfano was in fact incapacitated, Lynch — acting under color of state law — asked Alfano to perform a series of field sobriety tests. The parties dispute how Alfano performed on these tests. They agree, however, that he refused to take a breathalyzer test. Following that refusal, Lynch handcuffed Alfano and placed him in protective custody.

At first, Alfano was shackled to a bench. He was later transported to the Mansfield police station (some miles away) and confined in a holding cell. Roughly five hours later, he was released. By that time, the concert was over.

The matter did not end there. In July of 2015, Alfano sued in the federal district court. His complaint alleged, in substance, that Lynch lacked probable cause to take him into protective custody and, accordingly, abridged his Fourth Amendment right against unreasonable seizures. After a course of pretrial discovery, Lynch moved for summary judgment on qualified immunity grounds. Over Alfano’s opposition, the district court granted Lynch’s motion. See Alfano v. Lynch, No. 15-12943, 2016 WL 2993615, at *3 (D. Mass. May 23, 2016). The court held that the law was not clearly established as to the need for probable cause. See id. This timely appeal ensued.

II. ANALYSIS

We review the district court’s entry of summary judgment de novo. See DePoutot, 424 F.3d at 117. Summary judgment is appropriate only when the record reflects no genuine issue as to any material fact and discloses that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Schiffmann v. United States, 811 F.3d 519, 524 (1st Cir. 2016).

“[Q]ualifled immunity shields government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Matalon v. Hynnes, 806 F.3d 627, 632-33 (1st Cir. 2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). The doctrine’s prophylactic sweep is broad: it leaves unprotected only those officials who, “from an objective standpoint, should have known that their conduct was unlawful.” MacDonald v. Town of Eastham, 745 F.3d 8, 11 (1st Cir. 2014) (quoting Haley v. City of Bos., 657 F.3d 39, 47 (1st Cir. 2011)). Put another way, the doctrine protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).

The qualified immunity analysis entails a two-step pavane. See Matalon, 806 F.3d at 633 (citing Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). The first step requires an inquiring court to determine whether the plaintiffs version of the facts makes out a violation of a protected right. See id. The second step requires the court to determine “whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Id. (citation omitted).

These steps, though framed sequentially, need not be taken in order. See Pearson, 555 U.S. at 236, 129 S.Ct. 808. A court “may alter the choreography in the interests of efficiency,” defer the first step, and proceed directly to the second step. Matalon, 806 F.3d at 633. Because that path seems the most efficacious here, we focus initially on the second step, that is, whether the right at issue was clearly established when Lynch confronted Alfano.

The “clearly established” analysis has two sub-parts. See MacDonald, 745 F.3d at 12. The first sub-part requires the plaintiff to identify either “controlling authority” or a “consensus of cases of persuasive authority” sufficient to send a clear signal to a reasonable official that certain conduct falls short of the constitutional norm. Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999); see Limone v. Condon, 372 F.3d 39, 45 (1st Cir. 2004) (asking “whether the state of the law at the time of the putative violation afforded the defendant fair warning that his or her conduct was unconstitutional”). The second sub-part asks whether an objectively reasonable official in the defen-, dant’s position would have known that his conduct violated that rule of law. See Wilson v. City of Bos., 421 F.3d 45, 57-58 (1st Cir. 2005). The question is not whether the official actually abridged the plaintiffs constitutional rights but, rather, whether the official’s conduct was unreasonable, given the state of the law when he acted. See Amsden v. Moran, 904 F.2d 748, 751-52 (1st Cir. 1990).

The first sub-part of this analysis “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam) (citation omitted). In other words, the clearly established law must not be gauged at too high a level of generality; instead, it must be “particularized” to the facts of the case. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Even so, there is no requirement of identi-cality. In arguing for clearly established law, a plaintiff is not required to identify cases that address the “particular factual scenario” that characterizes his case. Matalon, 806 F.3d at 633. “[G]enewal statements of the law are not inherently incapable of giving fair and clear warning” to public officials, United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997); rather, the existence of fair and clear warning depends on whether, “in the light of pre-existing law” the unconstitutionality of the challenged conduct is “apparent,” Anderson, 483 U.S. at 640, 107 S.Ct. 3034. In the last analysis, it is enough if the existing precedents establish the applicable legal rule with sufficient clarity and specificity to put the official on notice that his contemplated course of conduct will violate that rule. See Matalon, 806 F.3d at 633 (citing Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002)).

In applying the test for clearly established law, the focus must be on federal precedents. See Davis v. Scherer, 468 U.S. 183, 193-95, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). Courts may consider state precedents, though, to the extent that they analyze the relevant federal issue. See Wilson, 421 F.3d at 56-57; Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 143-44 (1st Cir. 2001).

Here, the initial question reduces to whether — as of the parties’ encounter in July of 2014 — controlling and persuasive precedent provided fair and clear notice that the Fourth Amendment requires probable cause before a police officer, acting under a state protective custody statute, can take an individual into protective custody, handcuff the individual, transport him to a police station, and confine him in a jail cell. See Layne, 526 U.S. at 617, 119 S.Ct. 1692; Limone, 372 F.3d at 45. We turn next to that question.

It is hornbook law that the Fourth Amendment requires probable cause to place an individual under arrest. See Hayes v. Florida, 470 U.S. 811, 816, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985). The proper approach, though, is a functional one: for decades, controlling precedent has made pellucid that the probable cause requirement extends to certain types of custody that, though short of an arrest, possess attributes that are characteristic of an arrest. See id. (explaining that police must have probable cause to effect seizures that are “sufficiently like arrests”); Dunaway v. New York, 442 U.S. 200, 212-13, 216, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (holding that probable cause was required where petitioner’s detention, though not styled as an arrest, “was in important respects indistinguishable from a traditional arrest”). Following this logic, the Court — in the absence of express judicial authorization— has insisted upon probable cause when, for example, officers eschew an arrest but detain an individual and transport him'to a police station against his will. See Kaupp v. Texas, 538 U.S. 626, 630-31, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003) (per curiam); Hayes, 470 U.S. at 816, 105 S.Ct. 1643. In a similar vein, this court has required probable cause when a detention included “characteristics ordinarily associated with an arrest,” such as being placed in handcuffs and “involuntarily transported ... to an official holding area some distance from the place of the original stop.” United States v. Acosta-Colon, 157 F.3d 9, 15 (1st Cir. 1998).

Of particular pertinence for present purposes, we have left no doubt that the Fourth Amendment requires officers acting under a civil protection statute to have probable cause before taking an individual into custody of a kind that resembles an arrest. In Ahern v. O’Donnell, 109 F.3d 809 (1st Cir. 1997) (per curiam), we considered the Fourth Amendment implications of actions taken under a Massachusetts civil protection statute that allows a police officer to restrain and seek hospitalization of an individual when he has reason to believe that the failure to do so “would create a likelihood of serious harm by reason of mental illness.” Id. at 816 (quoting Mass. Gen. Laws ch. 123, § 12(a)). Observing that “involuntary hospitalization is no less a loss of liberty than an arrest,” we held that the Fourth Amendment’s safeguards against unreasonable seizures extended to protective custody on mental health grounds. Id. at 817.

Our holding in Ahern is not an outlier but, rather, reflects clearly established law. It comports with substantially identical holdings in other circuits. See, e.g., Cantrell v. City of Murphy, 666 F.3d 911, 923 & n.8 (5th Cir. 2012); Roberts v. Spielman, 643 F.3d 899, 905 (11th Cir. 2011); Bailey v. Kennedy, 349 F.3d 731, 739 (4th Cir. 2003); Monday v. Ouellette, 118 F.3d 1099, 1102 (6th Cir. 1997); Pino v. Higgs, 75 F.3d 1461, 1467-68 (10th Cir. 1996); Sherman v. Four Cty. Counseling Ctr., 987 F.2d 397, 401 (7th Cir. 1993); Glass v. Mayas, 984 F.2d 55, 58 (2d Cir. 1993); Maag v. Wessler, 960 F.2d 773, 775-76 (9th Cir. 1991) (per curiam).

To be sure, the scenario presented in Ahern is not entirely congruent with the scenario faced by Lynch. In our view, however, the parallels are close enough to have afforded a reasonable officer in Lynch’s position fair and clear warning that his conduct was unconstitutional. See Hope, 536 U.S. at 741, 122 S.Ct. 2508 (explaining that, in determining the existence of clearly established law, cases with identical facts are not required); Limone, 372 F.3d at 48 (similar). In other words, given the controlling and persuasive precedents and the notice that those precedents provided, the unlawfulness of Lynch’s actions should have been apparent to him. No more was exigible to satisfy the first sub-part of the “clearly established” analysis. See Anderson, 483 U.S. at 640, 107 S.Ct. 3034.

The Tenth Circuit reached the same conclusion in Anaya v. Crossroads Managed Care Systems, Inc., 195 F.3d 584 (10th Cir. 1999). There, the court — relying on much the same consensus of cases assembled in Ahern — held that it was clearly established that the Fourth Amendment required probable cause to take an allegedly incapacitated individual into protective custody under a municipal civil protection policy. See id. at 590-91, 594. The court found the analogy between inebriated persons and .the mentally ill compelling: it observed that “the context of protecting the public from the mentally ill is directly analogous to that of protecting the public from the intoxicated.” Id. at 594-95. Ana-ya, then, buttresses the view that the probable cause requirement for effecting seizures of incapacitated persons was clearly established at the time Alfano and Lynch crossed paths.

Because no Massachusetts reported cases analyze whether and to what extent the Fourth Amendment requires probable cause to take an individual into protective custody under the relevant statute, we could end our analysis here. See Scherer, 468 U.S. at 193-95, 104 S.Ct. 3012; Starlight Sugar, 253 F.3d at 143-44. We think it useful to note, however, that a decision of the state’s highest court, the Massachusetts Supreme Judicial Court (SJC), confirms the result to which the federal cases unambiguously point. In Commonwealth v. O’Brien, 434 Mass. 615, 750 N.E.2d 1000 (2001), the SJC stated (apparently as a matter of state law) that “[t]o take someone into protective custody, officers need ... probable cause to believe that the person is ‘incapacitated’ within the meaning of [the protective custody statute].” Id. at 1007.

To be sure, other Massachusetts courts have been more recondite. The Massachusetts Appeals Court, for example, has authored Janus-like decisions that appear to face in conflicting directions. Compare Commonwealth v. Nickerson, 79 Mass.App.Ct. 642, 948 N.E.2d 906, 913 (2011) (suggesting that “reasonable suspicion” standard applies), with Commonwealth v. Thomas, 73 Mass.App.Ct. 1127, 902 N.E.2d 433, at *1 (Mass. App. Ct. 2009) (unpublished table opinion) (stating that “probable cause” standard applies) and Commonwealth v. Silva, 63 Mass.App.Ct. 1108, 824 N.E.2d 487, at *2 n.3 (Mass. App. Ct. 2005) (unpublished table opinion) (same) and Commonwealth v. St. Hilaire, 43 Mass.App.Ct. 743, 686 N.E.2d 1045, 1048 (1997) (interpreting state precedent to mean that probable cause “is ordinarily the standard to be applied in protective custody cases”). We regard these decisions as being of little consequence because none of them purports to analyze the question in Fourth Amendment terms and because the SJC (which has been crystal clear on the issue) is the ultimate arbiter of Massachusetts law. Federal courts of appeals typically look only to precedents from the United States Supreme Court, federal appellate courts, and the highest court of the state in which a case arises to gauge whether a particular right is clearly established. See, e.g., Hill v. Crum, 727 F.3d 312, 322 (4th Cir. 2013); Lederman v. United States, 291 F.3d 36, 47-48 (D.C. Cir. 2002); Neague v. Cynkar, 258 F.3d 504, 507 (6th Cir. 2001); Jenkins ex rel. Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 826 n.4 (11th Cir. 1997) (en banc).

To say more about the clearly established nature of the law would be to paint the lily. We hold that, in July of 2014, controlling and persuasive authority combined to give a reasonable officer fair and clear warning that the Fourth Amendment required probable cause to take an individual into protective custody, handcuff him, transport him to a police station miles away, and confine him in a jail cell.

This holding does not end our odyssey. Concluding, as we do, that the probable cause requirement is clearly established, what remains to be done “reduces to the test of objective legal reasonableness.” Camilo-Robles v. Hoyos, 151 F.3d 1, 6 (1st Cir. 1998). Our resolution of this point turns on whether an objectively reasonable officer would have believed he had probable cause to take Alfano into protective custody within the meaning of the relevant protective custody statute. To make this judgment, we must consider whether Lynch’s decision to deem Alfano incapacitated, take him into protective custody, handcuff him, transport him to the police station, and confíne him in a jail cell was the kind of decision (whether or not correct) that a reasonable officer standing in Lynch’s shoes would have reached. See id. at 7.

For probable cause to have existed, the facts known to Lynch would have had to “give rise to a reasonable likelihood,” Cox v. Hainey, 391 F.3d 25, 31 (1st Cir. 2004), that Alfano was both intoxicated and incapacitated (that is, apt to harm himself, to harm someone else, or to damage property), see Mass. Gen. Laws ch. 111B, § 3. This is a fact-specific determination: a qualified immunity defense cannot prevail unless the officer’s conduct can be justified in light of the facts. See Morelli v. Webster, 552 F.3d 12, 24 (1st Cir. 2009).

Given that the district court resolved the qualified immunity question at summary judgment, we must take as true (for purposes of our probable cause inquiry) Alfa-no’s supportable version of the facts. See id. at 24-25. By “supportable,” we mean that we give credence only to facts that derive support from affidavits or other materials of evidentiary quality contained in the summary judgment record. See Garside v. Osco Drug, Inc., 895 F.2d 46, 49-50 (1st Cir. 1990).

On Alfano’s supportable version of the facts, Lynch took him into protective custody after Alfano was denied admission to the concert and brought to Lynch, who administered three field sobriety tests and unsuccessfully requested that Alfano agree to a breathalyzer test. Alfano admits that he failed the first field sobriety test (the one-leg stand) but maintains that he passed the second and third tests (which involve, respectively, reciting the alphabet and carrying out a horizontal gaze nystag-mus exercise). In his view, these test results revealed only what Lynch already knew: that Alfano had been drinking and was under the influence of alcohol.

Alfano explains that he refused a breathalyzer test because he had already arranged bus transportation back to Boston and would not be operating a motor vehicle. He adds that Lynch — who had been told that Alfano was travelling by bus — had no reason to think that he was planning to drive.

'Alfano insists that he was walking normally, steady on his feet (not stumbling, swaying, or lurching), and speaking clearly and in conversational tones. He asserts that he responded to Lynch’s questions in an alert and coherent manner; that he was generally cooperative and well-mannered throughout his interactions with Lynch and other security personnel; and that he was in no visible distress. The record, viewed favorably to Alfano, contains no facts indicating that Alfano was likely to harm himself, injure another person, or damage property.

The short of it is that Lynch may well have had probable cause to believe that Alfano was intoxicated. Here, however, Lynch’s reasons for placing Alfano into protective custody did not extend beyond probable cause to think that Alfano was intoxicated, and intoxication alone is not sufficient to warrant a finding of incapacitation. See Veiga v. McGee, 26 F.3d 1206, 1210 (1st Cir. 1994). The summary judgment record, construed in the light most favorable to Alfano, simply does not support a conclusion that Lynch had adequate reason to believe that Alfano, though intoxicated, was likely to harm himself or anyone else or to damage property. See, e.g., Nickerson, 948 N.E.2d at 913 (finding no incapacitation when defendant appeared intoxicated but was otherwise able to “converse coherently” and “relate appropriately” with police).

That ends this aspect of the matter. We readily acknowledge that Lynch’s version of the facts differs in many respects from Alfano’s account. Those factual disputes, however, must await resolution at a trial; at the summary judgment stage, it is Alfa-no’s version that controls. See Morelli, 552 F.3d at 24-25. On that version, a rational jury would have no choice but to find that Lynch’s determination of incapacitation was made without probable cause and was objectively unreasonable. It follows that— contrary to the district court’s view — the qualified immunity defense was not available to Lynch. See id. at 25.

III. CONCLUSION

We need go no further. For the reasons .elucidated above, we vacate the entry of summary judgment and remand for further proceedings consistent with this opinion. Costs shall be taxed in Alfano’s favor.

So ordered.

      . Alfano brought suit pursuant to 42 U.S.C. § 1983, which furnishes a cause of action against any person who, while acting under color of state law, transgresses someone else’s constitutional rights. See Kalina v. Fletcher, 522 U.S. 118, 123, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997).

      . Our decision in Veiga v. McGee, 26 F.3d 1206, 1214 (1st Cir. 1994), is not at odds with this line of cases. Although that decision did assess whether officer defendants acted reasonably under Mass. Gen. Laws ch. 11 IB, §§ 3, 8, it did not assess the level of suspicion required to take an individual into custody thereunder.

      . The municipal policy at issue in Anaya was substantially similar to the Massachusetts ■ statute under which Lynch was acting. Compare Anaya, 195 F.3d at 589 (quoting Trinidad, Colo. Police Dept. Order 95-04) with Mass. Gen. Laws ch. 11 IB, §§ 3, 8.

      . It is critical to our holding that Alfano was subjected to a deprivation of liberty that resembled an arrest. We take no view as to whether something less than probable cause might justify a briefer, less intrusive detention under the Massachusetts protective custody statute. See. Commonwealth v. McCaffery, 49 Mass.App.Ct. 713, 732 N.E.2d 911, 914 (2000); cf. Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (requiring only reasonable suspicion for a brief investigatory stop).

      . For the sake of completeness, we note that the Massachusetts protective custody statute limns a trio of other grounds for finding a person incapacitated. See Mass. Gen. Laws ch. 11 IB, § 3 (specifying that an intoxicated person may also be incapacitated if he is unconscious, in need of medical attention, or disorderly). Lynch does not claim that any of these other grounds has relevance here.


source: Caselaw Access Project

author: TORRUELLA, Circuit Judge.

license: Public Domain

text:
    PACKGEN, Plaintiff, Appellee, v. BERRY PLASTICS CORPORATION; Covalence Specialty Coatings, LLC, Defendants, Appellants.
    No. 16-1348
    United States Court of Appeals, First Circuit.
    February 1, 2017

      Jonathan M. Dunitz, with whom Taylor R. Neff and Verrill Dana LLP, Portland, ME, were on brief, for appellants.
    Kurt E. Olafsen, with whom Olafsen & Butterfield LLC, Portland, ME, was on brief, for appellee.
    Before TORRUELLA, LYNCH, and LIPEZ, Circuit Judges.
   TORRUELLA, Circuit Judge.

Defendants-Appellants Berry Plastics Corporation and Covalence Specialty Coatings, LLC (collectively, “Berry”) appeal from a jury’s award of $7.2 million in damages to Plaintiff-Appellee Packgen resulting from the failure of material Berry had supplied to Packgen. Berry contends that the district court erred by (1) denying Berry’s motion to exclude Packgen’s damages expert, (2) allowing Packgen employees to testify concerning potential Packgen customers’ intent to purchase Paekgen’s new product, and (3) failing to correct these errors by denying Berry’s motion for judgment as a matter of law, a new trial, or to alter or amend the judgment. We affirm.

I. BACKGROUND

A. Factual Background

Packgen manufactures a polypropylene intermediate bulk container used to transport and store catalyst, a hazardous and volatile chemical agent used to refine crude oil. No other company manufactures similar polypropylene containers, but refineries also lease metal flow bins to transport and store catalyst. In the mid-2000s, Packgen redesigned its bulk containers. It made the redesigned container, called the Cougar, out of a laminated fabric. Berry supplied the laminated fabric and represented that it could meet Packgen’s quality standards.

As part of the redesign, Packgen worked with CRI/Criterion (“CRI”), a catalyst manufacturer and its largest customer at the time, to modify the new Cougar to meet CRI’s specialized requirements. After a lengthy process, CRI began purchasing Cougars in October of 2007. From October 2007 to March 2008, CRI purchased 7,567 Cougars for nearly $1.5 million, and it placed an order for 1,359 Cougars to be delivered in April 2008.

Packgen also began marketing the Cougar to North American refineries in 2007, focusing on thirty-seven refineries where CRI supplied catalyst containers. Those refineries were likely customers because they would experience the Cougars CRI used, and they were all long distances from their catalyst suppliers, so they would save significant transport costs using the lighter, more compact Cougar rather than flow bins. Packgen’s sales manager testified that decision-makers at all thirty-seven refineries had told her “that they were going to be purchasing the [Cjougars on their next turnaround cycle.” Decision-makers at ten of the refineries had also told Packgen’s president that they “were willing to purchase and try [Packgen’s] containers.”

On April' 4, 2008, one of the Cougars CRI had purchased split open while being moved. Over the next weeks, Packgen learned that other Cougars had also failed, in some cases causing the catalyst inside to combust, and it began to investigate. Pack-gen determined that the Cougar had failed because some of the laminated fabric supplied by Berry was faulty, and that it had sold CRI approximately two thousand Cougars made from the faulty laminated fabric. Following the incident, CRI can-celled its order of 1,359 Cougars for the month of April, and it never ordered another Cougar. In addition, the thirty-seven refineries did not order Cougars as Pack-gen had anticipated.

B. Procedural History

Packgen filed suit against Berry in Maine Superior Court, alleging breach of contract, breach of implied and express warranties, and negligence. Berry removed the case to the United States District Court for the District of Maine.

Packgen designated Mark G. Filler, a certified public accountant and certified valuation analyst, as an expert witness on damages. Berry moved to exclude Filler’s opinions and testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and the district court held a two-day Daubert hearing. On September 12, 2014, the district court issued a forty-seven-page order denying Berry’s motion to exclude. It concluded that a variety of facts supported Filler’s ten-year projections of Packgen’s lost profits from CRI and the thirty-seven refineries, his assumption that Packgen had a one-in-ten chance each year of selling Cougars to each of the thirty-seven refineries, and his assumption that the refineries did not buy Cougars only because of the product failure, and it determined that Filler did not improperly combine forecasting methodologies from both business valuation and lost profits models.

Prior to trial, Berry filed a motion in limine seeking to exclude testimony by Packgen employees concerning CRI’s and the thirty-seven refineries’ intent to purchase Cougars and why they decided not to make those purchases. The district court reserved ruling on the motion for trial. At trial, the district court ruled that Packgen’s .president could “testify as to what a decision-maker at CRI told him about what CRI’s intent [to purchase Cougars] was” but not “why [CRI was] ceasing business.” The district court applied its ruling to subsequent testimony, allowing Packgen’s president and sales manager to testify that decision-makers at the thirty-seven refineries had expressed their intent to purchase Cougars but not about why those thirty-seven refineries subsequently did not make purchases.

After a trial, on November 12, 2015, the jury returned a verdict against Berry and awarded $7,206,646.30 in damages to Pack-gen. On January 29, 2016, the district court denied Berry’s motion for judgment as a matter of law, for a new trial, or to alter or amend the judgment. The district court entered judgment against Berry on March 8, 2016, and Berry timely appealed.

II. ANALYSIS

Berry argues on appeal that the district court abused its discretion by admitting Filler’s testimony regarding Packgen’s lost profits from the refineries because (1) he did not establish that the Cougar failures caused Packgen any lost profits from the refineries, (2) no facts supported his ten-year loss period, and (3) no facts supported his one-to-ten odds of selling Cougars to the refineries. Berry further argues that the district court abused its discretion by admitting Filler’s testimony regarding damages attributable to lost business from CRI because (1) no facts supported his assumption that CRI would purchase 1,261 units per month, (2) no facts supported his ten-year loss period, and (3) his analysis improperly combined lost-profit and business-valuation' methodologies. In addition, Berry asserts that the district court erred by allowing Packgen’s employees to testify about CRI’s and the refineries’ stated intent to purchase Cougars, because their testimony relied on hearsay, and that it erred by denying Berry’s motion for judgment as a matter of law, for a new trial, or to alter or amend the judgment. We address these arguments in turn.

A. The District Court Did Not Abuse Its Discretion by Admitting Filler’s Testimony

A district court must “ensur[e] that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597, 113 S.Ct. 2786. To determine whether testimony is sufficiently reliable — Berry does not challenge the testimony’s relevance — a district court must determine whether it is “based on sufficient facts or data,” was “the product of reliable principles and methods,” and whether the expert “reliably applied-the principles and methods to the facts of the case.” Fed. R. Evid. 702. “Exactly what is involved in ‘reliability’ ... must be tied to the facts of a particular case.” Milward v. Acuity Specialty Prods. Grp., Inc., 639 F.3d 11, 14-15 (1st Cir. 2011) (quoting Beaudette v. Louisville Ladder, Inc., 462 F.3d 22, 25-26 (1st Cir. 2006)). “So long as an expert’s scientific testimony rests upon good grounds, based on what is known, it should be tested by the adversarial process, rather than excluded for fear that jurors will not be able to handle the scientific complexities.” Id. at 15 (quotation marks and citation omitted) (quoting Daubert, 509 U.S. at 590, 113 S.Ct. 2786).

We review a district court’s decision to admit an expert’s testimony for abuse of discretion, unless the district court “altogether abdicate[d] its role under Daubert.” Smith v. Jenkins, 732 F.3d 51, 64 (1st Cir. 2013). There is no plausible argument that the district court abdicated its role here, no matter how many times Berry’s briefs repeat the word “abdicate” or a variant. The district court held a two-day Daubert hearing and issued a forty-seven page opinion addressing Berry’s arguments and explaining the reasons Filler’s testimony had sufficient support. Our review is only for abuse of discretion.

1. Filler’s Testimony Concerning the Thirty-Seven Refineries

Filler testified that he used simulation software to calculate Packgen’s likely lost profits from sales of Cohgars to the thirty-seven refineries over a ten-year period beginning in April 2008 and ending in April 2018. Filler’s model assumed that each year “Packgen had a one in ten chance of selling Cougars” to each refinery. Once a refinery began buying Cougars, “Packgen w[ould] continue to sell Cougars to [that] refinery” until the end of the ten-year period. If Packgen had not yet sold to a particular refinery, the model assumed Packgen would “try one more time.” The model also subtracted “actual mitigating sales to these refineries” in the first four years of the ten-year period (which were known) and “expected mitigating sales” for the remaining six years. This yielded net lost profits of $1,909,073: the difference between Packgen’s likely net profits if the material that Berry supplied had not been defective, and its likely net profits after the Cougars failed.

a. There Was Sufficient Evidence of Causation to Support Filler’s Testimony

Berry first argues that Filler should have conducted a market survey to determine which refineries would actually have purchased Cougars, rather than “assuming” that the thirty-seven refineries would have purchased Cougars. Berry also asserts that Filler was required to account for other reasons Cougars failed (he., improper exposure to “freezing and thawing,” mishandling, and punctures from a forklift). There was adequate evidence, however, that the thirty-seven refineries would purchase Cougars, including testimony that those refineries would see substantial savings by using the Cougars, that the refineries’ decision-makers had expressed an intent to purchase Cougars, and that those refineries would see CRI using the Cougars and be persuaded to try them.

Moreover, Filler was not required to do a market survey, as Berry suggests. The existence of other methods of gathering facts does not mean that the facts he relied on were insufficient. See Fed. R. Evid. 702 advisory committee’s note to 2000 amendment (“The amendment is broad enough to permit testimony that is the product of competing principles or methods.... ”). Filler “based his calculations on facts meeting the[] minimum standards of relevance and reliability.” i4i Ltd. P’ship v. Microsoft Corp., 598 F.3d 831, 856 (Fed. Cir. 2010) (citing Fed. R. Evid. 702). His testimony alone “did not have to establish the validity of [a] central, disputed factual claim[ ]” — that the defective Cougars caused the thirty-seven refineries to avoid buying Cougars — “to have a factual basis and be admissible.” Int’l Adhesive Coating Co. v. Bolton Emerson Int’l, Inc., 851 F.2d 540, 545 (1st Cir. 1988). Berry was free to argue to the jury that Filler’s failure to conduct a survey made his opinion less persuasive, but that failure did not make his opinion inadmissible.

Similarly, the fact that a few Cougars failed for reasons in addition to Berry’s defective product does not make Filler’s testimony unreliable. An expert should “adequately account[] for obvious alternative explanations.” Fed. R. Evid. 702 advisory committee’s note to 2000 amendments (citing Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 1994)). Filler did that here, finding that “there w[ere] no social, environment[al], [or] legal reasons why all of a sudden [CRI] would stop buying [Cougars],” and that the competitive market had not changed. The minor incidents of Cougar failures that Berry cites are very different in both type and impact from shipping two thousand defectively-manufactured Cougars, and Filler was not required to eliminate every other possible cause. Ambrosini v. Labarraque, 101 F.3d 129, 140 (D.C. Cir. 1996) (“The fact that several possible causes might remain ‘uneliminated’ ... only goes to the accuracy of the conclusion, not the soundness of the methodology.”); see also Currier v. United Techs. Corp., 393 F.3d 246, 252 (1st Cir. 2004) (holding that damages expert’s “fail[ure] to take into account” differences in situations between various employees was “a matter of weight rather than admissibility”); Cummings v. Standard Register Co., 265 F.3d 56, 65 (1st Cir. 2001) (affirming admission of damages expert’s testimony because, although “using [other] variables would have resulted in a lower, and perhaps more accurate, figure ... whatever shortcomings existed in [the expert’s] calculations went to the weight, not the admissibility, of the testimony”).

b. Sufficient Facts Supported Filler’s Ten-Year Loss Period

Filler’s model calculated losses for a ten-year period. Berry contends that the “only support” for this period “is a conversation [Filler] had with” Packgen’s president. Filler did discuss a ten-year period with Packgen’s president, determining that it would take five years for the negative effects of the Cougar failures to “wear off’ and another five years for sales to recover fully to where they would have been absent the failures. Those discussions do provide some support for Filler’s opinion. See E. Mountain Platform Tennis, Inc. v. Sherwin-Williams Co., Inc., 40 F.3d 492, 503 (1st Cir. 1994) (holding that testimony from plaintiffs employees that “it would take ... three years to rebuild the business” supported an award of future lost profits).

Filler’s ten-year period was also supported by other facts. Filler considered the opinion of Packgen’s catalyst expert that Cougars would save the thirty-seven refineries substantial costs, Packgen had “an excellent market presence,” and catalyst use would increase until the end of the ten-year period. In addition, Packgen was the only supplier of intermediate bulk containers, and there were few other options for the refineries, suggesting that few if any other competitors would enter the market.

Importantly, Filler was not projecting market conditions for a full ten years. His loss period began when the Cougars failed in 2008, but the Daubert hearing took place six years later. In those six years, no major new competitors entered the eata-lyst container market, and Cougar sales to the refineries had begun to recover and “exceeded]” Filler’s original projections. Actual profits. remained lower than the profits Filler projected if Berry’s material had not failed, however. Accordingly, it was reasonable to assume that Packgen’s lost profits would continue into the future, perhaps at least four more years.

Taken as a whole, the evidence was more than sufficient to support Filler’s ten-year loss period.

c. Sufficient Facts Supported Filler’s Assumption That One Refinery in Ten Would Begin Buying Cougars Each Year

Filler’s model included an assumption that each year ten percent of the refineries not yet purchasing Cougars would begin to do so. Berry characterizes Filler’s one-in-ten odds as “untethered to any facts or data” and again asserts that Filler should have conducted a market survey.

Filler relied on multiple facts in reaching his conclusion, including that the thirty-seven refineries would see CRI using Cougars, that Cougars could provide substantial cost savings to the refineries, and the refineries’ expressed interest in Cougars. Filler also discussed the likely success rate with Packgen personnel, who thought Packgen’s success rate with the refineries would be “[a] lot higher than ten percent.” Filler did not agree with Pack-gen’s estimates, however, because Pack-gen’s personnel “had no evidence” to support their estimates, and Filler understood that there was a lot of “inertia” in the refinery market.

There are certainly sufficient facts to support an inference that Packgen would make some sales to the thirty-seven refineries. The issue is whether those facts provided the minimal basis necessary to support Filler’s assumption that one in ten refineries would begin purchasing Cougars each year and allow him to present his calculations to the jury. In allowing Filler to testify, the district court pointed to those facts and recognized that Filler had rejected Packgen’s much higher estimated success rate. The district court also rejected Berry’s suggestion that Filler was required to conduct a market survey, finding that Berry could argue to the jury that Filler’s reliance on Packgen’s list of thirty-seven refineries made his opinion unpersuasive.

The district court did not abuse its discretion in doing so. An expert’s methodology must be “consistent with standards of the expert’s profession.” SMS Sys. Maint. Servs. v. Digital Equip. Corp., 188 F.3d 11, 25 (1st Cir. 1999). Experts may, however, make reasonable assumptions that are consistent with the evidence available to them. See Cummings, 265 F.3d at 65 (affirming the district court’s decision to allow a damages expert to testify where the expert’s assumptions were those made by similar experts “with some frequency”).

That is what Filler did. When pressed on cross-examination, Filler admitted that “[t]here is no empirical data” on what percentage of the thirty-seven refineries would purchase Cougars. The one-in-ten odds, however, produced “results that [Filler] thought were reasonable” because the 13,000 units sold in year ten were comparable to Packgen’s sales to CRI — an existing customer before the Cougars began to fail — and produced a fifty-percent market penetration by year ten.

Packgen points to facts suggesting that Filler’s assumptions were, in fact, conservative; Packgen’s regional sales manager testified that, based on her discussions with the thirty-seven refineries, she expected eighty-five to ninety percent of them to order Cougars. In addition, Pack-gen’s personnel told Filler that they expected a sales rate that was “[a] lot higher” than the ten-percent rate he used. Berry is really challenging Filler’s choice of a sales rate, and the district court did not abuse its discretion in determining that that is an argument properly made to the jury.

Berry’s other arguments concerning the refineries are not persuasive.

2. Filler’s Testimony Concerning CRI

Filler used a “deterministic model”— which does not account for future contin-. gencies — to calculate Packgen’s damages attributable to business lost from CRI. He assumed that what Packgen was “selling [to CRI] in the six-month period” prior to the Cougar failures “would have continued.” This represented the period in which CRI purchased the newly-customized Cougars. The average monthly sales for that period were 1,261 Cougars per month, and Filler projected that average out for ten years.

Berry argues that the district court abused its discretion by admitting Filler’s opinion because (1) there was no factual support for the ten-year loss period Filler used, (2) he had “no objective evidence that CRI would continue to purchase” Cougars at the same rate it had in the first six months, and (3) Filler combined lost-profit and business-valuation methodologies, creating “an untested, non-peer reviewed model.”

Berry’s argument about the ten-year loss period with respect to CRI fails for the same reasons described above with respect to the refineries. There was sufficient evidence that the market was unlikely-to change over ten years, and it did not, in fact, change in the six years following the accident and prior to the Daubert hearing.

There was also sufficient evidence to support Filler’s' assumption that CRI would continue to purchase Cougars in at least the same quantities as it had in the six months prior to the Cougar failures. CRI had dedicated considerable effort to customizing the Cougars for its needs, indicating that it found them useful and was likely to continue to purchase them. In addition, Filler relied on substantial evidence that the market for catalyst containers was unlikely to change dramatically and that there were no other suppliers of ' intermediate bulk containers. “It is ... common practice to estimate lost future profits by examining profits earned in the comparable past.” Atlas Truck Leasing, Inc. v. First NH Banks, Inc., 808 F.2d 902, 904 (1st Cir. 1987). That is precisely what Filler did here. Additional data would have been helpful, but Berry was able to make that argument to the jury. Berry’s contention that Filler should have considered sales “dating back to 2003” is misplaced. Sales prior to the six-month period were of a different product that had not been specifically tailored to CRI’s needs, and so did not represent “the comparable past.” Id

Berry’s assertion that Filler improperly “comingl[ed]” lost-profit and business-valuation methodologies also fails. Berry relies entirely on Filler’s testimony comparing a lost profits calculation to the “valu[ation] of a business that was destroyed” using “an income approach.” Berry nowhere ties this to Filler’s actual calculations, however, to explain how they were flawed or inappropriate. Filler explained in great detail how he calculated Packgen’s lost profits using its likely sales to CRI, prices, production and capital costs, and other expenses. That testimony, and the exhibits to Filler’s report, make clear that he calculated lost profits for the ten-year period, and his references to business valuations were merely an explanatory analogy that did not affect the admissibility of Filler’s opinions.

We find no error in the admission of Filler’s testimony concerning CRI.

B. The District Court Did Not Abuse Its Discretion by Admitting Testimony Concerning the Refineries’ Intent to Purchase Cougars

The district court allowed Pack-gen’s president and its sales manager to testify that decision-makers at the thirty-seven refineries had told them, prior to the Cougar failures, that they would purchase Cougars the next time they needed catalyst containers, over Berry’s objection. The district court determined that the statements, although hearsay, were admissible as the refineries’ then-existing state of mind under Fed. R. Evid. 803(3).

“We review rulings admitting or excluding evidence for abuse of discretion.” Shervin v. Partners Healthcare Sys., Inc., 804 F.3d 23, 41 (1st Cir. 2015). Rule 803(3) allows the admission of any “statement of the declarant’s then-existing state of mind (such as motive, intent, or plan).” “To be admissible under this exception, a declaration, among other things, must mirror a state of mind, which, in light of all the circumstances, including proximity in time, is reasonably likely to have been the same condition existing at the material time.” Colasanto v. Life Ins. Co. of N. Am., 100 F.3d 203, 212 (1st Cir. 1996) (internal quotation marks omitted). “Because disputes over whether particular statements come within a state-of-mind exception are fact sensitive, ‘the trial court is in the best position to resolve them.’ ” United States v. Rivera-Hernández, 497 F.3d 71, 81 (1st Cir. 2007) (quoting Colasanto, 100 F.3d at 212).

Out-of-court statements by a customer or employee may be admissible under Rule 803(3) to show intent or motive. See Catalan v. GMAC Mortg. Corp., 629 F.3d 676, 694-95 (7th Cir. 2011); Callahan v. A.E.V., Inc., 182 F.3d 237, 252 (3d Cir. 1999) (upholding the admission of employees’ testimony that customers “told them that they no longer shopped at the plaintiffs’ stores because of the [defendant’s] operations”). In Catalan, a plaintiff testified that a loan officer “told her that the plaintiffs’ home-equity loan applications would not be approved until their foreclosure was removed.” 629 F.3d at 694. Rule 803(3) applied because “the loan officer was speaking during the employment relationship concerning matters within the scope of her employment,” and so her statement “described] the bank’s collective intentions.” Id. at 694-95. Here, each statement by a refinery’s decision-maker reflected that refinery’s “collective intention” to purchase Cougars the next time the refinery needed catalyst containers.

Although Packgen’s president and sales manager both attributed the refineries’ statements of intent to decision-makers, Berry contends that “[t]his is not sufficient” because the decision-makers were not specifically named. But the cases Berry cites do not compel that conclusion. Allen v. Sybase, Inc. is inapposite because there, the testimony was impermissibly offered to prove the witness’s state of mind, rather than the declarants’. 468 F.3d 642, 660 n.14 (10th Cir. 2006). The testimony in Smith Fiberglass Prods., Inc. v. Ameron, Inc. was excluded because the declarant was identified only as “a gentleman” who stopped by a tradeshow booth, without describing who he was, where he worked, or whether he had decision-making authority for a potential customer. 7 F.3d 1327, 1330-31 & n.2 (7th Cir. 1993). Here, Pack-gen’s witnesses knew the declarants and testified that all declarants were decision-makers at their respective refineries.

Berry also maintains that there was an insufficient “temporal connection between the 37 refineries’ intent to purchase and their conversations with” Pack-gen’s president and sales manager because the refineries intended to purchase Cougars during their “next cycle,” and refineries’ catalyst cycles could vary from six months to two years. As Berry’s own cases explain, however, Rule 803(3) requires “contemporaneity between the event that gives rise to the state of mind or intention and the declarant’s expression of that state of mind or intention.” Amerisource Corp. v. RxUSA Int’l Inc., No. 02-CV-2514 (JMA), 2009 WL 235648, at *2 (E.D.N.Y. Jan. 30, 2009); Metro. Enter. Corp. v. United Techs. Int’l Inc., No. 3:03-cv-01685-JBA, 2006 WL 798870, at *1 (D. Conn. Feb. 28, 2006) (“[A] statement ... must be contemporaneous with the mental state [and] it must be timely such that the declarant had no time to fabricate.”). Here, Berry argues only that the refineries’ expected purchase date was not contemporaneous to the statements, not their state of mind. That the refineries would actually purchase at a later date, however, does not mean that their statements of intent were not contemporaneous with their mental state.

The district court therefore did not abuse its discretion in admitting the hearsay testimony under Rule 803(3).

C. Berry’s Post-Judgment Motion

Berry’s arguments in support of its post-judgment motion for judgment as a matter of law, a new trial, or to alter or amend the judgment rely entirely on its claims that the district court should have excluded Filler’s testimony and the hearsay testimony concerning the thirty-seven refineries. Because the district court did not abuse its discretion in admitting that testimony, and the evidence at trial was the same as that at the Daubert hearing, it did not err by denying Berry’s post-judgment motion.

III. CONCLUSION

For the foregoing reasons, we affirm district court’s judgment.

Affirmed.

      . The trial judge was not the same as the judge who held ihe Daubert hearing.

      . Nineteen.

      . Filler submitted his expert report in 2012, but his loss period ran through 2018. In estimating Packgen’s sales following the Cougar failures, he therefore used four years of actual sales data and projected the remaining six years.

      . Berry did question Filler’s basis for assuming that Berry’s defective material caused refineries not to purchase Cougars, but it chose not to conduct a market survey of its own and use the results to impeach Filler's testimony.

      . Although Filler specifically mentioned only CRI, the question was not specific to CRI, and the potential causes Filler considered are equally applicable to the refineries.

      . Berry characterizes Filler’s testimony that his results "were reasonable" as "circular reasoning.” It is not. As Filler’s testimony shows, his model was reasonable because it produced volumes that were "comparable to what [Packgen was] currently selling [to CRI].” Filler “compar[ed] the unknown to an analogous known experience,” a proper methodology. Alaska Rent-A-Car, Inc. v. Avis Budget Grp., Inc., 738 F.3d 960, 970 (9th Cir. 2013) (holding that criticisms of an expert’s choice of comparator company and extrapolation from one market to a larger region went to “the weight of the testimony ... not its admissibility”).

      . Refineries change out their catalyst at regular intervals. It is primarily during these change-overs that they use containers such as the Cougar.

      . Berry also takes issue with the admission of “the out-of-court statements, of an unnamed person at one refinery to prove the states of mind of all other refineries.” (emphasis omitted). Packgen's president only testified as to ten refineries, but Packgen’s sales managers testified that all thirty-seven refineries told her "they were going to order the [C]ougars.” Thus, there was evidence as to all refineries, and the jury was not required to “extrapolate from these ten refineries to all 37,” as Berry asserts.


author: WINTER, Circuit Judge: LEVAL, Circuit Judge,

text:
    PHYSICIANS HEALTHSOURCE, INC., Plaintiff-Appellant, v. BOEHRINGER INGELHEIM PHARMACEUTICALS, INC., Boehringer Ingelheim Corporation, Medica, Inc., Defendants-Appellees, John Does, 1-10, Defendants.
    Docket No. 15-288-CV
    August Term, 2015
    United States Court of Appeals, Second Circuit.
    Argued: September 29, 2015
    Decided: February 3, 2017

      GLENN L. HARA (Aytan Y. Beilin, Beilin & Associates LLC, White Plains, NY, on the brief), Anderson & Wanda, White Plains, NY, for Plaintiff-Appellant.
    THOMAS D. GOLDBERG (Bryan J. Orticelli, Day Pitney LLP, Stamford, CT, Matthew H. Geelan, Donahue, Durham & Noonan, P.C., Guilford, CT, on the brief), Day Pitney LLP, Stamford, CT, for Defendants-Appellees.
    Before: WINTER, JACOBS, and LEVAL, Circuit Judges.
   WINTER, Circuit Judge:

Physicians Healthsource appeals from Judge Underhill’s dismissal of its class action complaint asserting violations of the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Protection Act of 2005, 47 U.S.C. § 227 (the TCPA). The complaint alleges that appel-lees (collectively “Boehringer”) sent an unsolicited fax invitation for a free dinner meeting to discuss ailments relating to ap-pellees’ business. According to appellant, this fax constituted an “unsolicited advertisement” prohibited by the TCPA.

Judge Underhill dismissed appellant’s complaint for failure to state a claim— holding that no facts were pled that plausibly showed that the fax had a commercial purpose. While we agree that a fax must have a commercial purpose to be an “unsolicited advertisement,” we hold that the district court improperly dismissed appellant’s complaint. Where it is alleged that a firm sent an unsolicited fax promoting a free event discussing a subject related to the firm’s business, the complaint is sufficient to state a claim.

We therefore vacate and remand.

BACKGROUND

In reviewing a Fed. R. Civ. P. 12(b)(6) dismissal of a complaint, we accept all factual allegations as true, drawing all reasonable inferences in the plaintiffs favor. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).

The complaint alleges that, on April 6, 2010, Boehringer, a pharmaceutical company, sent an unsolicited fax to appellant, inviting one of appellant’s doctors to a free “dinner meeting” and discussion entitled, “It’s time to Talk: Recognizing Female Sexual Dysfunction (FSD) and Diagnosing Hypoactive Sexual Desire Disorder (HSDD).” J. App’x at 24. The “invitation” stated that

Boehringer Ingelheim Pharmaceuticals, Inc. cordially invites you to join us for a dinner meeting entitled, It’s Time to Talk: Recognizing Female Sexual Dysfunction and Diagnosing Hypoactive Sexual Desire Disorder. Based on recent data from a large US study (PRESIDE), 43% of US women aged > 18 years have experienced a sexual problem in their lives and 9.5% of the same group of women have experienced decreased sexual desire with distress. This program has been developed to discuss Female Sexual Dysfunction (FSD), including Hypoactive Sexual Desire Disorder (HSDD) including pathophysiology models, epidemiology, and diagnosis. We hope you will join us for this informative and stimulating program.

Id. The fax provided registration details and revealed that the speaker at the dinner meeting would be David Portman, MD.

On March 30, 2014, appellant filed a class action lawsuit on behalf of more than forty individuals against Boehringer, alleging that the fax violated the TCPA as an “unsolicited advertisement” without a proper opt-out notice. Id. at 11. According to the complaint, the fax was an “unsolicited advertisement” because it “promote[d] the services and goods of [Boehringer].” Id. Appellant sought an award of statutory damages in the minimum amount of $500 for each violation of the TCPA, and to have such damages trebled. Appellant also requested injunctive relief to enjoin Boeh-ringer from sending similar faxes in the future.

Boehringer moved to dismiss, arguing that appellant failed to state a claim under the TCPA because the unsolicited fax was not an advertisement. In its motion to dismiss, Boehringer asked the district court to take judicial notice of public records of the Food and Drug Administration (FDA) — a request that was unopposed and that the court granted. These records showed that, at the time it faxed appellant, Boehringer had submitted for approval by the FDA to market a drug named Fli-banserin. The drug was intended to treat HSDD. Because Flibanserin had yet to be approved by the FDA, Boehringer was forbidden to promote it. See 21 C.F.R. § 312.7(a) (prohibiting, inter alia, pharmaceutical companies from “promoting” drugs not yet approved by the FDA).

The district court dismissed the complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 3:14-CV-405 (SRU), 2015 WL 144728, at *6 (D. Conn. Jan. 12, 2015). The court interpreted Federal Communications Commission (FCC) regulations as “requiring] plaintiffs to show that [an unsolicited] fax has a commercial pretext” for it to violate the TCPA. Id. at *3. The court determined that “[n]othing in the [f]ax indicates that the dinner was a pretext for pitching a Boehringer product or service.” Id. at *5. The court noted that, “[e]ven drawing the inference that Boeh-ringer sponsored the dinner in order to inform potential future prescribers of Fli-banserin about the existence and nature of HSDD, the hypothetical future economic benefit that the Boehringer defendants might receive someday does not transform the [f]ax into an advertisement.” Id.

DISCUSSION

As noted, we review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6). See Chambers, 282 F.3d at 152. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as' true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). As the Supreme Court has stated,

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. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citations omitted) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).

Under the TCPA, it is unlawful for “any person within the United States” to send a fax that is an “unsolicited advertisement” — unless, inter alia, the fax has an opt-out notice meeting certain requirements. 47 U.S.C. § 227(b)(1)(C). The Act creates a private right of action, providing for statutory damages in the amount of $500 for each violation as well as injunctive relief against future violations. 47 U.S.C. § 227(b)(3).

The parties do not dispute that Boeh-ringer’s fax lacked any opt-out notice, and the question is, therefore, whether it was an “unsolicited advertisement.” The Act defines “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.” 47 U.S.C. § 227(a)(5). Exercising its delegated rulemaking authority over the TCPA pursuant to 47 U.S.C. § 227(b)(2), the FCC has promulgated a rule elaborating on the Act’s definition of “unsolicited advertisement.” Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991; Junk Fax Prevention Act of 2005, 71 Fed. Reg. 25967, 25973 (May 3, 2006) (the “2006 Rule”). The 2006 Rule states, in relevant part, that

facsimile messages that promote goods or services even at no cost, such as free magazine subscriptions, catalogs, or free consultations or seminars, are unsolicited advertisements under the TCPA’s definition. In many instances, “free” seminars serve as a pretext to advertise commercial products and services. Similarly, “free” publications are often part of an overall marketing campaign to sell property, goods, or services. For instance, while the publication itself may be offered at no cost to the facsimile recipient, the products promoted within the publication are often commercially available. Based on this, it is reasonable to presume that such messages describe the “quality of any property, goods, or services.” Therefore, facsimile communications regarding such free goods and services, if not purely “transactional,” would require the sender to obtain the recipient’s permission beforehand, in the absence of an [established business relationship].

Id. The Rule itself comports with the statutory language, which defines offending advertisements as those promoting “the commercial availability or quality of [the firm’s] property, goods, or services.” 47 U.S.C. § 227(a)(5).

The district court interpreted the Rule as “requiring] plaintiffs to show that the fax has a commercial pretext — i.e., ‘that the defendant advertised, or planned to advertise, its products or services at the seminar.’” Physicians Healthsource, 2015 WL 144728, at *3 (quoting Bais Yaakov of Spring Valley v. Richmond, the Am. Int’l Univ. in London, Inc., No. 13-CV-4564 (CS), 2014 WL 4626230, at *3 (S.D.N.Y. Sept. 16, 2014)). We do not disagree. But, at the pleading stage, where it is alleged that a firm sent an unsolicited fax promoting a free seminar discussing a subject that relates to the firm’s products or services, there is a plausible conclusion that the fax had the commercial purpose of promoting those products or services. Businesses are always eager to promote their wares and usually do not fund presentations for no business purpose. The defendant can rebut such an inference by showing that it did not or would not advertise its products or services at the seminar, but only after discovery. This interpretation comports with the 2006 Rule. “In interpreting an administrative regulation, as in interpreting a statute, we must begin by examining the language of the provision at issue.” Resnik v. Swartz, 303 F.3d 147, 151 (2d Cir. 2002). The 2006 Rule states that “it is reasonable to presume that such messages [advertising free seminars] describe the ‘quality of any property, goods, or services,’ ” potentially violating the TCPA. 2006 Rule, 71 Fed. Reg. at 25973 (quoting 47 U.S.C. § 227(a)(3)).

Of course, as other courts have ruled, not every unsolicited fax promoting a free seminar satisfies the Rule. There must be a commercial nexus to a firm’s business, i.e., its property, products, or services; that, in our view, is satisfied at the pleading stage where facts are alleged that the subject of the free seminar relates to that business. The Rule does not aim at faxes promoting free seminars per se, but states only that, “[i]n many instances, ‘free’ seminars serve as a pretext to advertise commercial products and services.” 2006 Rule, 71 Fed. Reg. at 25978 (“Messages that promote goods and services even at no cost, such as ... free ... seminars, are unsolicited advertisements under the TCPA’s definition.”). In a different but relevant context, the Rule states that “a trade organization’s newsletter sent via facsimile would not constitute an unsolicited advertisement, so long as the newsletter’s primary purpose is informational, rather than to promote commercial products.” Id.

Requiring plaintiffs to plead specific facts alleging that specific products or services would be, or were, promoted at the free seminar would impede the purposes of the TCPA. See Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 271 (3d Cir. 2013) (“Because the TCPA is a remedial statute, it should be construed to benefit consumers.”); Physicians Healthsource, Inc. v. Alma Lasers, Inc., No. 12 C 4978, 2012 WL 4120506, at *2 (N.D. Ill. Sept. 18, 2012) (“Congress enacted the TCPA to prevent the shifting of advertising costs to recipients of unsolicited fax advertisements.”) (citing H.R. Rep. No. 102-317, at 10 (1991); S. Rep. No. 102-78, at 2, 5 (1991), reprinted in 1991 U.S.C.C.A.N. 1968, 1972 (“[Ujnsolicited calls placed to fax machines, and cellular or paging telephone numbers often impose a cost on the called party (fax messages require the called party to pay for the paper used ...)”)). And — unless plaintiffs actually attended the free seminar — in many cases it will be difficult for plaintiffs to know whether it was in fact used to advertise a defendant’s products or services. See Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (“The Twombly plausibility standard, which applies to all civil actions ... does not prevent a plaintiff from pleading facts alleged upon information and belief where the facts are peculiarly within the possession and control of the defendant.”) (internal quotation marks omitted).

Two fanciful examples illustrate the distinction. If a complaint alleged that the Handy Widget Company funded a professorship at a local law school in the name of its deceased founder and faxed invitations on its letterhead to an inaugural lecture entitled “The Relevance of Greek Philosophers to Deconstructionism,” the complaint would not state a claim under the TCPA because the Handy Widget Company is not in the business of philosophical musings. In contrast, if the Handy Widget Company faxed invitations to a free seminar on increasing widgets’ usefulness and productivity, a claim under the TCPA would be validly alleged. Of course, the Handy Widget Company could rebut at the summary judgment stage with evidence showing that it did not feature its products or services at the seminar.

Boehringer’s fax advertised a “dinner meeting” to discuss two-medical conditions — Female Sexual Dysfunction (FSD) and Hypoactive Sexual Desire Disorder .(HSDD) — and their “pathophysiology models, epidemiology, and diagnosis.” J. App’x at 24. As a pharmaceutical company, Boeh-ringer was generally in the. business of treating diseases and medical conditions, such as FSD and HSDD. Moreover, the fax makes clear to the invitee that the dinner meeting was “sponsored by Boeh-ringer Ingelheim Pharmaceuticals, Inc.” Id. The fax invitation was sent to a doctor, whom Boehringer would presumably hope to persuade to prescribe its drugs to patients. Therefore, facts were alleged that Boehringer’s fax advertised a free seminar relating to its business.

In addition, Boehringer’s seeking approval from the FDA for the marketing of Flibanserin is relevant, although not dis-positive. Although not approved, the drug is intended as a remedy for the ailments to be discussed at the event. To be sure, Boehringer was prohibited from, inter alia, “promoting” an unapproved drug, 21 C.F.R. § 312.7(a), but that prohibition is not necessarily inconsistent with the free dinner’s mentioning the possible future availability of the drug. Nothing in the statute or Rule limits their scope to the advertisement of products or services then available.

In defense, Boehringer can present, inter alia, testimony of the dinner meeting participants as well as provide the meeting’s agenda, transcript, presentation slides, speaker list, or any internal emails or correspondences discussing the meeting. See Physicians Healthsource, Inc. v. Stryker Sales Corp., 65 F.Supp.3d 482, 492 (W.D. Mich. 2015) (holding that “the TCPA’s text does not require a court to put on evidentiary blinders in deciding whether a particular fax amounts to an advertisement” and allowing parties to present evidence beyond the four corners of the fax — such as presentation slides — to determine if a fax promoting a free seminar was pretextual). It is also possible that Boehringer used the seminar to advertise other drugs or services in its inventory— which would certainly support finding a violation of the TCPA.

CONCLUSION

For the foregoing reasons, we vacate and remand for further proceedings consistent with this opinion.

LEVAL, Circuit Judge,

concurring:

I concur in my colleagues’ opinion. I agree fully that the Complaint plausibly states a claim under 42 U.S.C. §§ 227(b)(1)(C) and (a)(5), as elucidated by the 2006 Rule promulgated by the Federal Communications Commission (FCC or the Commission), 71 Fed. Reg. 25967, 25973 (May 3, 2006).

I write separately, however, speaking for myself alone, and speaking only to state courts and federal courts outside this circuit, to air a somewhat different possible understanding of the 2006 Rule, which, while supporting the same conclusion as to the sufficiency of the Complaint, may better reflect the text of the Commission’s Rule.

The Complaint alleges that the Defendant, Boehringer Ingelheim Pharmaceuticals, Inc., sent an unsolicited fax message (without the required opt-out notice) to the Plaintiff, Physicians Healthsource, Inc. (as well as to other doctors). The fax message invited Dr. Jose Martinez (apparently one of the doctors of Physicians Healthsource) to a free dinner and lecture sponsored by the Defendant, at which David Portman, M.D., would discuss Female Sexual Dysfunction (FSD) and Hypoactive Sexual Desire Disorder (HSDD). At the Defendant’s request, in deciding the motions to dismiss the Complaint, the court took judicial notice of records of the Food and Drug Administration (FDA) showing that the Defendant had submitted an application for the FDA’s approval to market a new drug (flibanserin) for the treatment of HSDD, the condition that was to be the subject of the free lecture.

The Defendant argued in the district court that because its fax transmission consisted of an invitation to a free dinner and lecture, and did not on its face make any suggestion of a commercial nature or refer in any way to flibanserin, it did not come within the statute’s definition of an unsolicited advertisement: “material advertising the commercial availability or quality of any property, goods, or services.” 47 U.S.C. § 227(a)(5). The Plaintiff countered that the FCC’s 2006 Rule made clear, for purposes of the statute, that an unsolicited facsimile message promoting free goods and services is an unsolicited advertisement. The Plaintiff argued further that, given the Defendant’s pending application for FDA approval to market a drug for the treatment of HSDD, and the allegation of an invitation addressed to doctors to hear a medical lecture about HSDD, the Complaint plausibly alleged an overall marketing campaign and commercial purpose to get the doctors to prescribe the Defendant’s drug to patients suffering from HSDD, once the Defendant obtained FDA approval for the drug. The district court accepted the Defendant’s arguments and dismissed the Complaint.

The majority opinion reverses the district court’s dismissal of the Complaint, essentially adopting the Plaintiffs fallback argument — that, in view of the Defendant’s intention to market a drug for the treatment of HSDD, its offer of a free seminar for doctors discussing HSDD is plausibly alleged to be a commercially motivated advertisement of its product. On the other hand, the majority opinion rejects the Plaintiffs argument that the FCC’s 2006 Rule treats this offer of a free seminar per se as an advertisement of “the commercial availability” of a product. It reasons that the fax offering free goods or services would constitute an advertisement only if the offer of the free seminar turned out to be a pretext or prelude for a commercial promotion, and asserts that the Defendant “can rebut such an inference [of intent to promote a commercial product] by showing [after discovery] that it did not or would not advertise its products or services at the seminar.” Maj. Op. 95. Although recognizing that “[businesses are always eager to promote their wares and usually do not fund presentations for no business purpose,” the opinion asserts that, if the defendant can show after discovery that at the free dinner and seminar no reference whatsoever was made to the Defendant’s drug for treatment of HSDD (or any other products or services it offered), the Defendant would prevail in the litigation. Id. at 95, 97.

I agree fully with the majority’s conclusion that the Complaint, as supplemented by the information about the Defendant’s commercial product that the Defendant added to the record on the motion to dismiss, plausibly supports an intention on the part of the Defendant to foster future sales of its drug. It seems obvious that, when a pharmaceutical company, which is preparing to market a drug for the treatment of HSDD, invites doctors to a free dinner and lecture on HSDD, the objective of the event is to get doctors to eventually prescribe the company’s drug to their patients, even though the company might be forced by legal requirements not to speak about the drug itself (as opposed to the condition) until FDA approval is secured.

I believe, in addition, that other courts might read the FCC’s 2006 Rule to mean that, at least when sent by commercial, profit-motivated entities, faxes offering free goods or services are deemed to be advertisements (and “unsolicited advertisements” if sent without the prior permission of the recipient), regardless of whether the offer of free goods and services was a pretext or preliminary to explicit promotion of commercial products and services.

In enacting the Telephone Consumer Protection Act of 1991, as amended by the Junk Fax Prevention Act of 2005, Congress undertook to limit the use in commerce of certain methods of communication that impose costs, hardships, and annoyances on unwilling recipients. Section 227 focuses, in part, on the transmission of “unsolicited advertisement^]” to “telephone facsimile machinefs]” (fax machines). The sending of “unsolicited advertisements” to a fax machine is ex-' pressly prohibited except in specified circumstances (which include the requirement that the message include a notice (conforming to specifications) that the recipient may opt out of further receipt of such messages). See . 47 U.S.C. § 227(b)(1)(C) (“It shall be unlawful for any person within the United States ... to send, to a telephone facsimile machine, an unsolicited advertisement, unless.... ” (emphasis added)).

The statute defines “unsolicited advertisement” to mean “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.” Id. § 227(a)(5). The statute goes on to direct the FCC to “prescribe regulations to implement the requirements of this subsection” and to “initiate a rulemak-ing proceeding concerning the need to protect residential telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they object.” See id. §§ 227(b)(2) and (c)(1). The FCC promulgated the 2006 Rule.

The 2006 Rule is not written in the manner of a conventional regulation. It is a rambling 22-page discussion, in which some sentences assert normative rules and definitions, others describe arguments that have been submitted to the agency by commentators and the Commission’s responses to them, and yet others explain the Commission’s observations and reasoning that led it to its conclusions.

A chapter of the 2006 Rule specifically addresses facsimile messages that contain “Offers for Free Goods and Services,” and the question whether such messages constitute “unsolicited advertisements.”

If one reads this passage precisely, sentence by sentence, giving each sentence its natural meaning, it can be read to establish a rule that differs significantly from the majority opinion’s interpretation of it.

The first sentence can be read to state a categorical conclusion as to the meaning of “unsolicited advertisement” as applied to faxes that offer free goods or services.

The Commission concludes that facsimile messages that promote goods or services even at no cost, such as free magazine subscriptions, catalogs, or free consultations or seminars, are unsolicited advertisements under the TCPA’s definition.

2006 Rule, 71 Fed. Reg. at 25973 (emphasis added).

The next four sentences appear to recount what the Commission observed and how those observations led it to adopt the categorical rule stated in the first sentence. These four sentences explain:

In many instances, “free” seminars serve as a pretext to advertise commercial products and services. Similarly, “free” publications are often part of an overall marketing campaign to sell property, goods, or services. For instance, while the publication itself may be offered at no cost to the facsimile recipient, the products promoted within the publication are often commercially available. Based on this, it is reasonable to presume that such messages describe the “quality of any property, goods, or services.”

Id.

The final sentence of the passage follows the Commission’s factual observations described in the prior four sentences with the word, “Therefore,” and then essentially restates the categorical rule of the first sentence — that facsimile messages offering free goods and services are treated as advertisements, so that the sender must “obtain the recipient’s permission beforehand, in the absence of an [established business relationship].” Id.

In view of the apparently categorical assertion of the first sentence (repeated in substance in the final sentence) — that “facsimile messages that promote goods or services even at no cost ... are unsolicited advertisements under the TCPA’s definition” — another court might well disagree with the majority opinion’s view that the Rule “does not aim at faxes promoting free seminars per se.” Maj. Op. 96. Nothing in the text suggests that the Commission’s observation of the frequency with which free offers lead to commercial solicitation was intended as limiting the Commission’s categorical proposition announced in the first sentence, rather than providing an explanation for it.

In addition, a court might conclude that the majority opinion’s selective quotation and characterization of the last two sentences of the passage on free goods and services change their meaning. The majority opinion describes the 2006 Rule as stating that, because of the reasonableness of the presumption adopted by the FCC that messages advertising free seminars in fact describe the “quality of any property, goods, or services,” such messages “potentially violat[e] the TCPA.” Id. at 95. The 2006 Rule, however, after noting the reasonableness of that presumption, goes on to say that fax messages offering free goods and services “[tjherefore ... would require the sender to obtain the recipient’s permission beforehand.” 2006 Rule, 71 Fed. Reg. at 25973 (emphasis added). This passage, read literally, says that, unless the recipient gave permission, the fax message offering free goods or services does violate the TCPA — not that it “potentially” violates the TCPA.

The 2006 Rule, in other words, can be read to say, in sum: Because of the frequency, observed by the Commission, that messages offering free goods or services in fact mask or precede efforts to sell something, the Commission has adopted a prophylactic presumption that fax messages offering free goods or services are advertisements and thus are prohibited by § 277 (unless they are either sent with the consent of the recipient or meet the requirements for the statutory exception).

One might ask why the Commission would adopt this presumption rather than letting it be determined in litigation whether one who accepted the offer of free goods or services would ultimately confront an attempt to sell something. The Commission did not explain its reasons. One can well surmise, however, that because the statute generally offers plaintiffs a maximum award of $500 in statutory damages, the statute’s efficacy in controlling nuisance faxes would be nullified if a plaintiff needed to spend thousands of dollars in discovery litigation to win a much smaller award. And as to the risk that a sender might be held liable in circumstances where its offer of free goods did not lead to an attempt to sell, the Commission could take comfort in (1) its determination that this would occur infrequently, and (2) the near certainty that the damages award inflicted on the defendant would be negligible — even less than the litigation cost of making a motion to dismiss.

I recognize that there is a significant argument against this literal reading of the Commission’s Rule. If this passage is read to apply universally to all “facsimile messages that promote goods or services ... at no cost,” this would mean that fax messages sent by charitable, nonprofit entities for the sole purpose of alerting intended beneficiaries to the availability of charitable offerings would incur liability. Because the governing statute imposes liability for fax transmissions only on “material advertising the commercial availability or quality of any property, goods, or services,” see § 227(a)(5), it is at least doubtful whether the Commission can lawfully impose a rule requiring that the statute be read to impose liability for faxes sent by charitable nonprofit organizations with no objective other than to give away free goods or services.

There are, however, answers to this objection. Notwithstanding the breadth of the Commission’s language in the first and last sentences of the quoted paragraph concerning Offers for Free Goods and Services, it is doubtful whether the Commission intended this broad categorical rule to apply to offers of free goods and services by nonprofit entities. Both the statute and the 2006 Rule communicate an intention that nonprofits be treated differently, at least in some respects, from commercial entities. In a separate portion of the 2006 Rule, the Commission set forth some discussion of how the statute treats nonprofits, suggesting that nonprofits are not covered by the otherwise categorical rule treating faxes offering free goods and services as advertisements.

While neither the TCPA nor its amendments carve out an exemption for nonprofits from the facsimile advertising rules, the Commission agrees with those petitioners that argue that messages that are not commercial in nature— which many nonprofits send — do not constitute “unsolicited advertisements” and are therefore not covered by the facsimile advertising prohibition. (... [Consistent with the language of the TCPA, the Commission does not intend for the clarifications in this Order to result in the regulation of noncommercial speech as commercial facsimile messages under the TCPA regulatory scheme.) The Commission clarifies that messages that do not promote a commercial product or service, including all messages involving political or religious discourse, such as a request for a donation to a political campaign, political action committee or charitable organization, are not unsolicited advertisements under the TCPA. (... [T]he fact that a political message .contains an offer to attend a fundraising dinner or to purchase some other product or service in connection with a political campaign or committee fundraiser does not turn the message into an advertisement for purposes of the TCPA’s facsimile advertising rules.)

2006 Rule, 71 Fed. Reg. at 25972.

The Commission’s observations about nonprofits in this passage — that they send noncommercial messages and that such messages, including, for example, offers to attend fundraising dinners, are not advertisements — seem inconsistent with applying to nonprofits the apparently unqualified rule in the provision regarding Offers of Free Goods and Services. As a result, a court might conclude that the Commission intended the “Free Goods and Services” provision to apply to faxed offers by commercial entities, and not to similar faxes sent by nonprofits. It is, furthermore, unlikely that the 2006 Rule’s statement about the frequency with which offers of free goods and services are prefatory to commercial advertisement was predicated on the Commission’s observation of such offers by nonprofits. If a court, therefore, faced a suit brought against a nonprofit, based on a faxed offer to distribute free benefits, the court might conclude that the Commission’s 2006 Rule simply does not address that circumstance, so that the cas.e should be adjudicated solely by reference to the provisions of the statute, which would presumably support the conclusion that a nonprofit’s fax offering free goods or services was not an unsolicited advertisement.

While I concur in the panel opinion, ruling that the Complaint states a claim, I note that other courts might interpret the Commission’s 2006 Rule differently.

      . See Physicians Healthsource, Inc. v. Stryker Sales Corp., 65 F.Supp.3d 482, 489 (W.D. Mich. 2015); Bais Yaakov of Spring Valley v. Richmond, the Am. Int'l Univ. in London, Inc., No. 13-CV-4564 (CS), 2014 WL 4626230, at *3 (S.D.N.Y. Sept. 16, 2014) ("While the [2006 Rule], could be read to categorize all faxes promoting free seminars as unsolicited advertisements, many courts require plaintiffs to show that the defendant advertised, or planned to advertise, its products or services at the seminar.”); Addison Automatics, Inc. v. RTC Group, Inc., No. 12 C 9869, 2013 WL 3771423, at *2 (N.D. Ill. July 16, 2013) ("[FJaxes promoting free seminars may be unsolicited advertisements because free seminars are often a pretext to market products or services.”) (internal quotation marks omitted); St. Louis Heart Center, Inc. v. Forest Pharms., Inc., No. 4:12-CV-02224, 2013 WL 1076540, at *4 (E.D. Mo. Mar. 13, 2013); Phillip Long Dang, D.C., P.C. v. XLHealth Corp., No. 1:09-CV-1076-RWS, 2011 WL 553826, at *4 (N.D. Ga. Feb. 7, 2011) (“[T]he Court does not read the FCC Promulgation as creating a per se ban on free seminar communications.”).

      . Appellant relies on another provision of the 2006 Rule — that "applications and materials regarding educational opportunities and conferences sent to persons who are not yet participating or enrolled in such programs are unsolicited advertisements,” 2006 Rule, 71 Fed. Reg. at 25973 — to support its argument that faxes promoting free seminars are per se violations of the TCPA. We are unconvinced. The cited provision targets pretextual materials that promote, for example, enrollment at particular educational institutions; it does not purport to create a per se rule of the sort appellant advances. See 2006 Rule, 71 Fed. Reg. at 25974.

      . In this opinion, the Defendants are collectively referred to as the "Defendant.”

      . A note on the fax message indicated that the invitation was extended only to healthcare professionals, and not to their spouses or guests.

      . The menace to the public represented by unsolicited advertisements sent by fax has mercifully diminished since the passage of the Act, as newer means of communication have supplanted the fax and far fewer consumers now possess fax machines. Nonetheless, usage of fax machines continues, and, for those who use them, the problem that led Congress to pass the Junk Fax Prevention Act persists.

      . An "unsolicited advertisement" may not be sent to a fax machine unless (1) "the sender [has] an established business relationship with the recipient,” (2) the "sender obtained the number of the telephone facsimile machine” in a manner permitted by the statute, and (3) the unsolicited advertisement contains a "clear and conspicuous” opt-out notice on the first page which meets various statutory specifications. 47 U.S.C. §§ 227 (b)(1)(C) & (2)(D).

      . The pertinent passage reads:

        Offers for Free Goods and Services and Informational Messages

      The Commission concludes that facsimile messages that promote goods or services even at no cost, such as free magazine subscriptions, catalogs, or free ■ consultations or seminars, are unsolicited advertisements under the TCPA’s definition. In many instances, "free” seminars serve as a pretext to advertise commercial products and services. Similarly, "free” publications are often part of an overall marketing campaign to sell property, goods, or services.
      For instance, while the publication itself may be offered at no cost to the facsimile recipient, the products promoted within the publication are often commercially available. Based on this, it is reasonable to presume that such messages describe the “quality of any property, goods, or services.” Therefore, facsimile communications regarding such free goods and services, if not purely "transactional,” would require the sender to obtain'the recipient's permission beforehand, in the absence of an [established business relationship],
      2006 Rule, 71 Fed. Reg. at 25973.

        . The final sentence includes the qualification, "if not purely ‘transactional.’ ” This qualification has no bearing on our analysis. The immediately preceding passage of the 2006 Rule explains that " ‘Transactional’ Communications,” those "whose purpose is to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender[,] are not advertisements for purposes of the TCPA’s facsimile advertising rules.” 2006 Rule, 71 Fed. Reg. at 25972.

      . Plaintiffs may recover their "actual monetary loss” or "$500 in damages for each [] violation, whichever is greater.” 47 U.S.C. § 227(b)(3)(B). Absent truly exceptional circumstances, $500 will likely far exceed a plaintiff's actual monetary loss caused by receipt of an unsolicited fax.

      . See 47 U.S.C. § 227(a)(4) (defining “telephone solicitation,” another form of communication governed by the statute, expressly to exclude “a call or message ... by a tax exempt, nonprofit organization”).

      . Section 227(b)(2)(F) of the statute authorizes the Commission to issue a regulation exempting nonprofit professional or trade associations from the requirement to include an opt-out notice on unsolicited fax advertisements sent to their members. The Commission declined to create that exemption, however, in part because of the benefits of the notice to recipients, and in part because inclusion of the notice is not a burdensome obligation. See 2006 Rule, 71 Fed. Reg. at 25971.