James L. Orrington, II, D.D.S., P.C. v. Scion Dental, Inc. et al

Filing 27

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 7/6/2017:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES L ORRINGTON, II, D.D.S., P.C., )
on behalf of himself and
)
the class members defined herein,
)
)
Plaintiff,
)
)
v.
)
)
SCION DENTAL, INC., and
)
JOHN DOES 1-10,
)
)
Defendants.
)

Case No. 17-CV-00884
Hon. Amy J. St. Eve

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
On February 2, 2017, Plaintiff James Orrington (“Orrington”) brought the present
Complaint against Scion Dental, Inc. (“Scion”) and John Does 1-10, collectively “Defendants,”
alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), the
Illinois Consumer Fraud Act 815 ILCS 505/2 (“ICFA”), and Illinois common law. Before the
Court is Scion’s motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6).
For the following reasons, the Court grants Scion’s motion without prejudice.
BACKGROUND
Scion is a Delaware corporation that maintains its principal office in Menomonee Falls,
Wisconsin. (R. 1, Compl. ¶ 4.) Scion’s registered agent and office is Registered Agent
Solutions, Inc., of Madison, Wisconsin. (Id.) John Does 1-10 are natural or artificial persons
that were involved in the sending of the facsimile (“fax”) advertisements described below. (Id. ¶
5.) Plaintiff is a dental office located in the Northern District of Illinois, where it maintains
telephone fax equipment. (Id. ¶ 3.)

On July 7, 2016, Plaintiff received an unsolicited fax message on its fax machine inviting
Plaintiff to attend an online webinar. (Id. ¶ 9; Ex. A, Fax Message.) Plaintiff alleges that Scion
is responsible for sending or causing the sending of the fax. (Compl. ¶ 11.) According to
Plaintiff, Scion’s products and services were advertised in the fax and as such, Scion derived the
economic benefit from the sending of the fax. (Id. ¶ 12.) Plaintiff claims that Scion was seeking
to recruit dentists to enter into business relationships, and Scion either negligently or willfully
violated Plaintiff’s rights by sending the fax message. (Id. ¶¶ 12-13.) Plaintiff had no prior
relationship with Scion and had not authorized the sending of fax advertisements to Plaintiff.
(Id. ¶ 15.) Plaintiff alleges on information and belief that Scion sent the generic fax as part of a
mass broadcasting of faxes to at least 40 other persons in Illinois. (Id. ¶¶ 16, 19.) The fax does
not contain an “opt-out” notice that complies with the TCPA. (Id. ¶ 17.)
LEGAL STANDARD
“A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the
viability of a complaint by arguing that it fails to state a claim upon which relief may be
granted.” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014). Under
Rule 8(a)(2), a complaint must include “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The short and plain statement under Rule
8(a)(2) must “give the defendant fair notice of what the claim is and the grounds upon which it
rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). Under the federal
notice pleading standards, a plaintiff’s “factual allegations must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555. Put differently, a “complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

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In determining the sufficiency of a complaint under the plausibility standard, courts must
“accept all well-pleaded facts as true and draw reasonable inferences in the plaintiffs’ favor.”
Roberts v. City of Chicago, 817 F.3d 561, 564 (7th Cir. 2016). When ruling on motions to
dismiss, courts may also consider documents attached to the pleadings without converting the
motion to dismiss into a motion summary judgment, as long as the documents are referred to in
the complaint and central to the plaintiff’s claims. See Adams v. City of Indianapolis, 742 F.3d
720, 729 (7th Cir. 2014); Fed. R. Civ. P. 10(c). Because Plaintiff attaches a photocopy of the fax
message to the Complaint and this document is central to its claim, the Court may consider this
attachment in ruling on the present motion.
ANALYSIS
Plaintiff alleges that Scion’s unsolicited fax violated the TCPA, which prohibits any
person from sending unsolicited fax advertisements, unless one of several exceptions applies.
Fulton Dental, LLC v. Bisco, Inc., No. 16-3574, 2017 WL 2641124, at *1 (7th Cir. June 20,
2017). A sender is excluded from the prohibition against unsolicited fax advertisements if the
sender has an established business relationship with the recipient or if the sender obtained the fax
number from the recipient or from a public directory. Id.; see also 47 U.S.C. § 227(b)(1)(C).
Even these permitted faxes must include an opt-out notice in clear and conspicuous language.
Fulton, 2017 WL 2641124, at *1; Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 683 (7th Cir.
2013) (“the fax must tell the recipient how to stop receiving future messages”) (citing 47 U.S.C.
§ 227(b)(1)(C)(iii), (2)(D)). Here, Scion argues that the Court should dismiss Plaintiff’s TCPA
claims because Plaintiff has failed to adequately allege that (1) the fax was unsolicited and (2)
the fax was an advertisement. The Court addresses each argument in turn.

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I.

Plaintiff Adequately Alleged That The Fax Was Unsolicited
Scion first argues that the Court should dismiss Plaintiff’s TCPA claims because Plaintiff

fails to adequately allege that the fax message was “unsolicited.” Scion notes that United
Healthcare, another company, is also listed on the fax and argues that Plaintiff’s failure to
mention United Healthcare in its Complaint indicates that it is possible that Plaintiff gave United
Healthcare consent to send it faxes. Scion concedes that the fax did not contain an opt-out
notice, but argues that the TCPA no longer requires opt-out notices on faxes that have been sent
with prior consent due to a recent decision from the D.C. Court of Appeals. Bais Yaakov of
Spring Valley v. Fed. Commc’ns Comm’n, 852 F.3d 1078, 1083 (D.C. Cir. 2017) (holding that
the Federal Communications Commission’s (“FCC”)1 rule requiring opt-out notices on solicited
faxes is unlawful).
Contrary to Scion’s position, its concession that the fax did not include an opt-out notice
is dispositive on this issue because under binding Seventh Circuit precedent, opt-out notices are
still required under the TCPA, even for solicited faxes. The Seventh Circuit has explicitly held,
relying on the TCPA itself and not the FCC rules, that “[e]ven when the Act permits fax ads—as
it does to persons who have consented to receive them, or to those who have established business
relations with the sender—the fax must tell the recipient how to stop receiving future messages.”
Turza, 728 F.3d at 683 (citing 47 U.S.C. § 227(b)(1)(C)(iii), (2)(D)). Turza is binding precedent
on this Court, and accordingly, Plaintiff has adequately alleged that the fax was unsolicited. See
Physicians Healthsource, Inc. v. Allscripts Health Sols., Inc., No. 12 C 3233, 2017 WL 2391751,
at *2–3 (N.D. Ill. June 2, 2017) (“Given the vertical hierarchy of the federal courts, we are bound

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The FCC regulations are relevant because section 227(b)(2) of the TCPA gives the FCC authority to
issue regulations implementing the statute. Turza, 728 F.3d at 687.

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to follow Turza and are not at liberty to opt for Bais Yaakov.”)2
II.

Plaintiff Failed to Allege That The Fax Was An Advertisement
Scion next argues that Plaintiff has failed to sufficiently allege that the fax, which offers a

free training webinar regarding United Healthcare’s web portal to dental providers in United
Healthcare’s network, was an advertisement under the TCPA.
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).
“Congress has not spoken directly on the issue of whether an advertisement for free services can
be unsolicited advertisements under the TCPA.” GM Sign, Inc. v. MFG.com, Inc., No. 08 C
7106, 2009 WL 1137751, at *2 (N.D. Ill. Apr. 24, 2009). Thus, courts within this district have
accepted the FCC’s construction of the statute, which provides that faxes “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.” Id. (quoting In re Rules
and Reg. Implementing the Tel. Consumer Prot. Act of 1991 and the Junk Fax Prevention Act of
2005, 21 F.C.C.R. 3787, 3814 (Apr. 6, 2006)). Although the FCC’s rules “could be read to
categorize all faxes promoting free seminars as unsolicited advertisements,” courts typically
require 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.” 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) (citing N. Suburban Chiropractic Clinic, Ltd. v. Merck
& Co., No. 13–CV–3113, 2013 WL 5170754, at *3 (N.D. Ill. Sept. 13, 2013).

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Because the fax’s lack of an opt-out notice dooms Scion’s argument that Plaintiff may have solicited the
fax, the Court need not address Scion’s argument regarding United Healthcare.

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Thus, courts in this district have found that faxes promoting seminars or webinars are
advertisements if they have a commercial pretext. In N. Suburban Chiropractic Clinic, Ltd. v.
Merck & Co., No. 13 C 3113, 2013 WL 5170754, at *1-2 (N.D. Ill. Sept. 13, 2013), for example,
this Court considered whether a fax that the defendant, a prescription drug company, sent to the
plaintiff inviting recipients to a medical webinar for health care professionals was an
advertisement. The Court concluded that the fax was an advertisement even though it did not
explicitly mention any of the defendant’s commercial products or express the defendant’s intent
to market such products because the plaintiff alleged that the defendant “use[d] the fax
advertisements and the seminars as part of its work or operations to market its goods and
services.” Id. at *4. The Court reasoned that the fax directed recipients to the defendant’s
corporate website to register for the seminar and emphasized that the fax stated that registration
for the seminar required the recipient to agree that the defendant could contact them regarding
“product information, site enhancements, special offers, [and] educational opportunities” among
other things. Id. As a result, the Court found that the fax “may have been a pretext to market its
goods and services,” which was sufficient to state a TCPA claim.
Similarly, in Physicians Healthsource, Inc. v. Alma Lasers, Inc., No. 12 C 4978, 2012
WL 4120506, at *2 (N.D. Ill. Sept. 18, 2012), the court denied the defendant’s motion to dismiss
a TCPA claim regarding a fax promoting a free seminar on various medical aesthetics
techniques. The court found that it was “plausible that Alma promoted its products and services
by holding a free seminar” because the plaintiff alleged that the fax was part of the defendant’s
“work or operations to market [its] goods or services” and because the fax required recipients to
register on its website or by phone. Id. See also Mussat v. Power Liens, LLC, No. 13-CV-7853,
2014 WL 3610991, at *2 (N.D. Ill. July 21, 2014) (finding fax promoting seminar regarding

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company’s services was advertisement because plaintiff alleged it was “part of a marketing
campaign to sign up physicians for a preferred listing on defendant’s website in exchange for a
monthly fee”); Sadowski v. OCO Biomedical, Inc., No. 08 C 3225, 2008 WL 5082992, at *2
(N.D. Ill. Nov. 25, 2008) (finding fax was unsolicited advertisement where it promoted a training
seminar for which dentists could pay $295 to participate).
In contrast, courts have found that faxes inviting recipients to free seminars offering
information about the defendants’ services are not advertisements as long as they do not promote
or sell those services. In Phillip Long Dang, D.C., P.C. v. XLHealth Corp., No. 109-CV-1076RWS, 2011 WL 553826, at *4 (N.D. Ga. Feb. 7, 2011), for example, the court found that the
defendant PPO’s fax alerting non-PPO-participating recipients to a free seminar in which they
could learn about the defendants’ billing processes was not an advertisement under the TCPA.
The court explained that the fax was not promoting defendants’ services or seeking to sell
insurance to the recipients and was instead seeking merely to inform the recipient about the
defendants’ payment processes. Id.
Similarly, in Physicians HealthSource, Inc. v. MultiPlan Servs., Corp., No. CIV.A. 1211693-GAO, 2013 WL 5299134, at *2 (D. Mass. Sept. 18, 2013), the court dismissed the
plaintiff’s TCPA claim for failure to sufficiently allege that the defendant PPO’s fax to a doctor
who was already a PPO member was an advertisement. The court explained that the text of the
fax did not “purport to sell [ ] goods or services” and instead provided information concerning
services already available to the recipient of the fax. Id. The court noted the plaintiff failed to
plead any facts to support that the fax was “anything other than a transactional communication”
sent to update the PPO member on the services and features available to him. Id. Accordingly,
“based on the four corners” of the fax, the court found that it could not be construed as a “pretext

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to advertise commercial products or services. Id. Likewise, in Phillips Randolph Enters., LLC.
v. Adler–Weiner Research Chi., Inc., 526 F. Supp. 2d 851, 852–53 (N.D. Ill. 2007), the court
found that a fax inviting recipients to participate in “a research discussion on the topic of a new
HEALTHCARE PROGRAM sponsored by The Chicagoland Chamber of Commerce” and
instructed interested recipients to “call to see if you qualify” was not an advertisement or a
pretext to an advertisement. The court reasoned that the plaintiff had not alleged “that the fax
was a pretext to an advertisement” and emphasized that fax recipients had to be “pre-screened”
before participating in the program. Id. at 853.
Here, Plaintiff has failed to sufficiently allege that the fax at issue was an advertisement
or a pretext for an advertisement. Unlike Alma, the fax at issue in this case did not direct
recipients to register for the seminar on a corporate website, and it certainly did not require that
the recipient to agree that the defendant could contact them regarding product information and
special offers as in Merck. 2013 WL 5170754, at *4. In contrast, here, the fax on its face
indicates that recipients did not “need to register in advance” and could simply join an online
meeting discussing updates to the defendant’s portal. (R. 1, Ex. A.) Additionally, unlike Merck
and Alma, here, Plaintiff did not allege, nor does the fax itself indicate, that Scion was using the
fax advertisement and the webinar in an effort to market its services or sell its goods. Plaintiff’s
conclusory allegation that Scion “derived economic benefit” from the fax is insufficient.
(Compl. ¶ 12.) See Sandusky Wellness Ctr., LLC v. Medco Health Sols., Inc., 788 F.3d 218, 225
(6th Cir. 2015) (“The fact that the sender might gain an ancillary, remote, and hypothetical
economic benefit later on does not convert a noncommercial, informational communication into
a commercial solicitation.”); Physicians Healthsource, Inc. v. Janssen Pharm., Inc., No. CIV.A.
12-2132 FLW, 2013 WL 486207, at *5 (D. N.J. Feb. 6, 2013) (“the inquiry under the TCPA is

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whether the content of the message is commercial, not what predictions can be made about future
economic benefits.”)
In sum, Plaintiff’s allegations and the fax itself fail to plausibly suggest that the fax was a
pretext to an advertisement. Here, like in Phillip Long and MultiPlan, the fax on its face is not
an overt advertisement—instead, it seeks to inform recipients about updates to Scion’s services
and processes via a free webinar that requires no registration. Like in Multiplan, Plaintiff has not
alleged facts indicating that this fax was “anything other than a transactional communication”
sent to update Scion’s clients on the services and features available to him. 2013 WL 5299134,
at *2. Plaintiff has not alleged that the fax was sent to potential new customers or clients or that
the webinar was part of a plan to market or sell Scion’s goods or services to new customers.
Even accepting all the allegations as true and drawing reasonable inferences in Plaintiff’s favor,
Plaintiff has failed to allege a plausible claim.
Accordingly, the Court dismisses Plaintiff’s TCPA claim without prejudice. Because the
Court grants Scion’s motion to dismiss Plaintiff’s TCPA claim, the Court does not have subject
matter jurisdiction, and thus declines to exercise its supplemental jurisdiction over Plaintiff’s
state law claims. 28 U.S.C. § 1367(c)(3).
CONCLUSION
For these reasons, the Court grants Scion’s Rule 12(b)(6) motion to dismiss.
Dated: July 6, 2017
ENTERED

______________________________
AMY J. ST. EVE
United States District Court Judge
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