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Orrington v. Scion Dental, Inc.

United States District Court, N.D. Illinois, Eastern Division

October 7, 2019

JAMES L. ORRINGTON, II, D.D.S, P.C., on behalf of plaintiff and the class members defined herein Plaintiff,
v.
SCION DENTAL, INC. and JOHN DOES 1-10, Defendants.

          MEMORANDUM OPINION AND ORDER

          John J. Tharp, Jr. United States District Judge.

         James L. Orrington, II, D.D.S., P.C., individually and on behalf of the class members defined herein, alleges that the defendant, Scion Dental, Inc., sent a fax in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). Orrington alleges that the fax constitutes an “unsolicited advertisement” as defined by the TCPA. 47 U.S.C. § 227(a)(4). In a previous order, the Court granted Scion's first FRCP 12(b)(6) motion to dismiss for failure to state a claim. After Orrington filed an amended complaint, the Court granted in part and denied in part Scion's second 12(b)(6) motion to dismiss for failure to state a claim. Before the court is Scion's motion for summary judgment under FRCP 56(a) for the one surviving claim of the first amended complaint. For the reasons detailed below, the motion is granted.

         BACKGROUND

         Orrington is a dental provider. Scion's business consists of processing and paying dental claims on behalf of insurance company clients. Orrington joined a provider network organized by CAREington, a third-party company not involved in the current litigation. CAREington then leased the network to UnitedHealthCare (“UHC”), which is one of Scion's clients. Orrington and other dental providers participating in one of the networks established by Scion's clients have access to Scion's Provider Web Portal (“Portal”), which allows the providers to submit claims to Scion. The Portal, however, is not the exclusive means of claim submission to Scion, and providers are free to send in claims in other ways if they so choose.

         On July 7, 2016, Orrington received a fax containing both UHC's and Scion's logos. The one-page fax detailed a series of free online training opportunities, or webinars, relating to a recent update to the Portal. The fax provided instructions for how to attend one of the webinars, as well as additional information concerning the new features of the update. The fax did not contain any instructions for opting out of future communications.

         Both parties agree that the webinars consisted solely of training with respect to use of the Portal. Scion did not offer any products or services for purchase at the webinars, track who attended, collect any contact information from participants, or follow up with attendees. In addition, Scion's marketing group was not involved with the creation or delivery of the webinar. The webinar leaders also did not discuss pricing for access to the Portal, which is not available for purchase by anyone. In fact, Scion does not sell anything to dental providers and never has-its clientele consists of insurers, not providers.

         Orrington argues that Scion generally must keep its providers happy and that the Portal helps it do so. Moreover, Orrington alleges that Scion's contract with UHC requires promotion of the Portal for their “mutual commercial benefit.” Pl.'s Resp. to Mot. for Summ. J., p. at 1. ECF No. 74. Consequently, Orrington believes the fax to have been an unsolicited advertisement in violation of the TCPA.

         DISCUSSION

         The Federal Rules of Civil Procedure dictate that courts should grant summary judgment when “there is no genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). For nonmoving parties to prevail in motions for summary judgment, they must “set forth specific facts showing that there is a genuine issue for trial.” Ptasznik v. St. Joseph Hosp., 464 F.3d 691, 694 (7th Cir. 2006) (internal citations omitted). Nonmoving parties must present enough evidence to support a favorable jury verdict; a mere “scintilla” of evidence in their favor is insufficient. Id.

         Congress enacted the TCPA to protect consumers against unwanted mass marketing by telephone and fax. Under § 227(b)(1)(C) of the act, no person may “use any telephone facsimile machine, computer, or other device to send . . . an unsolicited advertisement.” Thus, the key issues in this case are whether the fax in question was unsolicited and whether it constitutes an advertisement. The TCPA defines an unsolicited advertisement as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission. . .” 47 U.S.C. § 227(a)(5). The Court previously ruled that Scion's fax was unsolicited because it lacked an opt-out notice. Though the legal landscape as to that ruling has changed significantly in the interim, Scion has not sought to revisit that ruling in light of the new developments.[1] The sole issue presented by Scion's summary judgment motion is whether the fax in question constituted an “advertisement” within the meaning of the TCPA.

         As explained in the Court's prior opinion, when, as in this case, the “fax on its face is not an overt advertisement, ” courts in this district have typically then looked to whether the fax is a pretext to an advertisement. Mem. Op. and Order, p. 9, ECF 27; see, e.g., N. Suburban Chiropractic Clinic, Ltd. v. Merk & Co., No. 13-CV-3113, 2013 WL 5170754 (N.D. Ill. Sept. 13, 2013) (finding it plausible that a fax for a free webcast could be an advertisement because webcast attendance required registration on the sender's website, which in turn requested permission from registrants to contact them about the sender's products); Physicians Healthsource, Inc. v. Alma Lasers, Inc., No. 12-CV-4978, 2012 WL 4120506 (N.D. Ill. Sept. 18, 2012) (denying the defendant's motion to dismiss because of the possibility that the free seminar promoted on the fax could serve as a type of bait-and-switch in which the defendant promoted its good or services). Courts in other districts have found no advertising pretext for faxes relaying information about free seminars so long as those seminars do not sell or promote commercial products or services. See, e.g., Phillip Long Dang, D.C., P.C. v. XLHealth Corp., No. 109-CV-1076-RWS, 2011 WL 553826 (N.D.Ga. Feb. 7, 2011) (determining that there was no advertising pretext with respect to a fax containing information about free insurance seminars in which no insurance was sold and no commercial promotion took place).

         Consequently, the Court granted Scion's first motion to dismiss because Orrington's initial complaint did not allege facts sufficient to plausibly allege that the fax was a pretext to an advertisement. Then, after Orrington filed an amended complaint containing specific allegations that Scion intended to use the free webinar as a bait-and-switch, the Court denied Scion's second motion to dismiss with respect to the TCPA claim. By allowing the TCPA claim to move forward, the Court afforded Orrington the opportunity to develop a factual record capable of demonstrating that the fax was a pretext to an advertisement.

         As a preliminary matter, Orrington challenges the view that it must, in the absence of reference to a commercially available product or service (i.e., overt advertising), show that Scion's fax was a pretext to expose Scion to advertising. Orrington maintains that the Court should adopt a per se rule requiring all faxes that promote free goods and services, including seminars, to be considered unsolicited advertisements. Orrington bases its position largely on a 2006 Federal Communications Commission Order and a recent decision issued by the Fourth Circuit Court of Appeals.[2] Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991; Junk Fax Prevention Act of 2005, 71 Fed. Reg. 25, 967, 25, 973 (May 3, 2006) (the “2006 FCC Rule”); Calrton & Harris Chiropractic, Inc. v. PDR Network, LLC, 883 F.3d 459 (4th Cir. 2018). The relevant portion of the 2006 FCC Rule reads:

[F]acsimile 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 ...

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