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

Filing 36

MEMORANDUM Opinion and Order. Signed by the Honorable Amy J. St. Eve on 11/20/2017. Mailed notice (lf, )

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 July 20, 2017, Plaintiff James Orrington (“Orrington”) brought the present Amended
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)
[29]. For the following reasons, the Court grants in part and denies in part Scion’s motion to
dismiss.
PROCEDURAL BACKGROUND
On June 30, 2017, the Court dismissed Plaintiff’s initial Complaint without prejudice.
The Court found that while Plaintiff had sufficiently alleged that the fax in question was
unsolicited because it did not contain an “opt out” notice, Plaintiff’s allegations and the fax itself
failed to plausibly suggest that the fax was a pretext to an advertisement, as required to state a

claim under the TCPA. (R. 27, June 7, 2017 Opinion.) Plaintiff has since filed an Amended
Complaint, which includes additional allegations, described below.
BACKGROUND
Scion is a Delaware corporation that maintains its principal office in Menomonee Falls,
Wisconsin. (R. 28, Am. Compl. ¶ 4.) Scion’s registered agent 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. (Am. Compl. ¶ 11.) Plaintiff alleges
that Scion’s goal in sending the fax was to induce the recipient to enter into a business
relationship with Scion, which Scion expected to be mutually profitable for itself and the
recipient. (Id. ¶ 12.) Scion is engaged in the business of administering health benefit plans and
providing electronic communications between (1) medical providers, like Plaintiff, (2) insurance
companies, benefit plans, and government agencies, (3) and patients. (Id. ¶ 13.) Scion’s website
explains that it provides integrated network management platforms that result in streamlined
claims processing and a resulting “significant cost reduction and competitive advantage” for its
clients, who are able to service multiple healthcare providers. (Id. ¶¶ 14-15.) Scion claims to
have “industry-leading functionality, especially in the area of provider and member self-service
web portals.” (Id. ¶ 18.) Plaintiff alleges that, to be profitable, Scion must offer its services to
and sign up as many medical providers as possible and induce them to use its latest software and

2

technology. (Id. ¶ 17.) Accordingly, Scion must seek to recruit dentists to enter into business
relationships. (Id. ¶ 19.) Recruiting dentists, as well as healthcare providers, builds Scion’s
network, and results in Scion developing a broader and more effective network. (Id. ¶¶ 17-19.)
Plaintiff had no prior relationship with Scion before receiving the fax and Plaintiff had
not authorized the sending of fax advertisements. (Id. ¶¶ 20, 29.) Plaintiff alleges that the fax
itself promoted a webinar at which Scion intended to introduce its services to dental practices,
sign them up to Scion’s platform, and induce them to use Scion’s latest software and technology.
(Id. ¶ 21.) Put differently, the webinar described in the fax promoted the commercial availability
and quality of Scion’s products and services, which would result in streamlined claim processing
and access to more patients. (Id. ¶¶ 21-23.) In exchange for this streamlined processing,
medical providers agree to Scion’s cost-containment practices, which are in turn appealing to
Scion’s healthcare insurance provider clients. (Id. ¶ 24.) In short, Plaintiff alleges that the fax
was an advertisement because Scion intended it to induce the recipient medical providers to enter
into a business relationship with Scion, who sent the fax, for mutual profit, even though, in some
cases, the patient, insurance company, benefits plan, or governmental agency might ultimately
pay Scion. (Id. ¶¶ 20-25.)
Plaintiff alleges, on information and belief, that Scion sent the generic fax as part of a
mass mailing and notes that it promoted a series of 30 webinars, each of which had capacity for
100 participants, indicating Scion likely sent it to many medical practices. (Id. ¶ 30.) The fax
does not contain an “opt out” notice that complies with the TCPA. (Id. ¶ 31.) Plaintiff alleges
that there were no reasonable means for it to avoid receiving Scion’s unsolicited faxes because
its fax machines must remain in operation in order to receive other, legitimate fax
communications. (Id. ¶ 34.)

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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).
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.

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ANALYSIS
I.

Count I—TCPA
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., 860 F.3d 541, 542 (7th Cir. 2017). As noted above, the Court
has already found that, under Seventh Circuit precedent, the fax at issue here was unsolicited.
Scion argues, as it did in its first motion to dismiss, that the Court should dismiss Plaintiff’s
TCPA claims because Plaintiff has failed to adequately 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. 1
As the Court explained in its first Opinion, 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 advertisements 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
1

Scion does not make any arguments regarding Plaintiff’s state law claims in its renewed motion to
dismiss, however, it incorporates its arguments from its first motion to dismiss, which the Court did not
address because it refused to exercise supplemental jurisdiction over those claims.

5

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)
(citation omitted).
The Court explained that several courts have found that faxes promoting seminars are
advertisements if they have a commercial pretext. See, e.g., N. Suburban Chiropractic Clinic,
Ltd. v. Merck & Co., No. 13 C 3113, 2013 WL 5170754, at *1-2 (N.D. Ill. Sept. 13, 2013)
(finding that drug company’s fax inviting recipients to webinar for health care professionals
“may have been a pretext to market its goods” in part because participants had to register on
company’s corporate website); Physicians Healthsource, Inc. v. Alma Lasers, Inc., No. 12 C
4978, 2012 WL 4120506, at *2 (N.D. Ill. Sept. 18, 2012) (finding plaintiff plausibly alleged that
fax promoting a free seminar on medical techniques was part of the defendant’s “work or
operations to market [its] goods or services”); Mussat v. Power Liens, LLC, No. 13-CV-7853,
2014 WL 3610991, at *2 (N.D. Ill. July 21, 2014) (finding fax promoting seminar on 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”).
The Court also explained that, 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. See, e.g., Phillip Long Dang, D.C., P.C. v.
XLHealth Corp., No. 109-CV-1076-RWS, 2011 WL 553826, at *4 (N.D. Ga. Feb. 7, 2011)
(PPO’s fax alerting non-PPO-participating recipients to free seminar in which they could learn
about the defendants’ billing processes was not an advertisement because PPO was not seeking

6

to sell insurance); Physicians HealthSource, Inc. v. MultiPlan Servs., Corp., No. CIV.A. 1211693-GAO, 2013 WL 5299134, at *2 (D. Mass. Sept. 18, 2013) (PPO’s fax to a PPO member
was not advertisement because it did not sell goods or services); Phillips Randolph Enters., LLC.
v. Adler–Weiner Research Chi., Inc., 526 F. Supp. 2d 851, 852–53 (N.D. Ill. 2007) (fax inviting
recipients to participate in research discussion was not advertisement because recipients had to
be “pre-screened” before participating in the program).
With this case law in mind, the Court found that in its initial Complaint, Plaintiff failed to
sufficiently allege that the fax at issue was an advertisement or a pretext for an advertisement.
Specifically, the Court found that the fax did not on its face advertise any services or products,
and more importantly, Plaintiff’s conclusory allegation that the Scion “derived economic
benefit” did not provide sufficient factual detail as to the way in which Scion intended to market
its goods or services at the webinar or obtain a commercial benefit via the webinar. In its
Amended Complaint, however, Plaintiff addressed those deficiencies by providing several new,
specific allegations that make the connection between the webinar described in the fax and
Scion’s business model and explain how Scion received a commercial benefit from providing
webinars like that promoted in the fax. Specifically, Plaintiff’s Amended Complaint contains the
following new allegations:
•

Scion’s goal was to induce the recipient to enter into a business relationship with
Scion, which Scion expected to be mutually profitable. (Am. Compl. ¶ 12.)

•

Scion administers health benefit plans and provides a communications platform
between (1) medical providers, like Plaintiff, (2) insurance companies, benefit
plans, and government agencies, (3) and patients. (Id. ¶ 13.)

•

Scion provides integrated network management platforms that result in
streamlined claims processing and a resulting “significant cost reduction and
competitive advantage” for its clients. (Id. ¶¶ 14-15.)

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•

Scion claims to have “industry-leading functionality, especially in the area of
provider and member self-service web portals.” (Id. ¶ 18.)

•

Scion’s business model requires that it offer its services to as many medical
providers as possible and induce them to use its latest software. (Id. ¶ 17.)

•

Scion must seek to recruit dentists to use Scion’s product because recruiting
dentists, as well as healthcare providers, builds Scion’s network, and results in
Scion developing a broader and more effective network. (Id. ¶¶ 17-19.)

•

The fax at issue promoted a webinar at which Scion intended to introduce its
services to dental practices, sign them up to Scion’s platform, and induce them to
use Scion’s latest software and technology. (Id. ¶ 21.)

•

Put differently, the webinar described in the fax promoted the commercial
availability and quality of Scion’s products and services, which would result in
streamlined claim processing and access to more patients. (Id. ¶¶ 21-23.)

•

In exchange for this streamlined processing, medical providers agree to Scion’s
cost-containment practices, which are in turn appealing to Scion’s healthcare
insurance provider clients. (Id. ¶ 24.)

Scion contends that these new allegations are irrelevant because they merely quote its
website and fail to show a commercial pretext, but that argument is unpersuasive at this stage of
the litigation. The new allegations go well beyond Plaintiff’s conclusory allegation in its initial
Complaint that Scion derived some unknown economic benefit from the fax and the webinar,
and instead, the allegations provide important details about Scion’s business model and how the
webinar is part of Scion’s commercial enterprise. Specifically, when viewing the Amended
Complaint in the light most favorable to Plaintiff, the allegations demonstrate that the webinar
referenced in the fax was critical to Scion’s business model and commercial activities because it
provided an opportunity for Scion to demonstrate its services to medical providers that would
potentially use Scion’s platforms either as clients or in their communications with healthcare
insurance companies. Plaintiff’s, and other dentists’, familiarity with Scions’ platform and
technology services was critical to Scion’s business operations because Scion’s value derives

8

from its streamlined services for medical providers, patients, and healthcare insurance providers.
Scion planned to use the webinar to both sign up new medical providers to its platform and to
introduce them to the features of that platform. Viewing these allegations in the light most
favorable to Plaintiff and making all inferences in Plaintiff’s favor, the webinar was directly
related to Scion’s commercial activities and thus, Plaintiff has sufficiently alleged, at this stage,
that the fax was commercial in nature.
As noted above, several courts have denied motions to dismiss in similar cases where the
faxes in question referenced seminars relating to the defendant’s work or operations to market its
services and where those services were available to the recipients of the fax. See, e.g., Merck &
Co., 2013 WL 5170754, at *1-2 (finding that drug company’s faxed invite to a free seminar was
commercial because it was part of defendant’s work or operations to market its goods or
services); Alma Lasers, 2012 WL 4120506, at *2 (finding that although fax itself did not indicate
intent to advertise, plaintiff plausibly alleged that free seminar described in fax was part of
defendant’s “work or operations to market [its] goods or services”); Sadowski v. OCO
Biomedical, Inc., No. 08 C 3225, 2008 WL 5082992, at *2 (N.D. Ill. Nov. 25, 2008) (finding that
fax promoting seminar was commercial in nature because it promoted defendant’s services and
purported to improve recipient’s profitability); St. Louis Heart Ctr., Inc. v. Caremark, L.L.C.,
No. 4:12CV2151 TCM, 2013 WL 9988795, at *3 (E.D. Mo. Apr. 19, 2013) (finding fax was
commercial even though it did not explicitly offer goods or services for sale but invited
recipients to seminar describing defendant’s services and products).
Here, as in the cited cases, Plaintiff has sufficiently alleged, at this stage, that Scion’s fax
was commercial in nature and thus qualifies as an advertisement under the TCPA. Accordingly,
the Court denies Scion’s motion to dismiss Plaintiff’s TCPA claim.

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II.

State Law Claims
Scion does not make any arguments regarding Plaintiff’s state law claims in its renewed

motion to dismiss. It does, however, incorporate its arguments from its first motion to dismiss,
which the Court did not address at the time because it declined to exercise supplemental
jurisdiction over Plaintiff’s state law claims having dismissed Plaintiff’s TCPA claim. Plaintiff
argues that Scion exceeded the briefing page limit by referring back to these arguments, but the
Court will consider Scion’s initial arguments regarding the state law claims, as well as Plaintiff’s
responses to those arguments from the first round of briefing, because Plaintiff has not amended
its state law claims and the core allegations relating to those claims remain unchanged in
Plaintiff’s Amended Complaint.
In three separate counts, Plaintiff has alleged that Defendant violated the Illinois
Consumer Fraud Act and that Defendant is liable for conversion and trespass to chattels under
Illinois common law. The Court addresses each count in turn.
A. Count II—Illinois Consumer Fraud Act (“ICFA”)
In Count II, Plaintiff alleges that Scion violated the ICFA by sending its unsolicited fax.
Specifically, Plaintiff claims that sending the fax represented an unfair method of business
competition because it allowed Scion to shift the cost of mass advertising to the recipients of the
fax in a way that is impossible to achieve with a lawful, direct mail campaign.
The ICFA “is a regulatory and remedial statute intended to protect consumers, borrowers,
and business persons against fraud, unfair methods of competition, and other unfair and
deceptive business practices.” Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir. 2010) (citation
and internal quotation marks omitted). “To state a claim under the ICFA, Plaintiffs must allege
five elements: (1) a deceptive act or unfair practice occurred, (2) the defendant intended for

10

plaintiff to rely on the deception, (3) the deception occurred in the course of conduct involving
trade or commerce, (4) the plaintiff sustained actual damages, and (5) the damages were
proximately caused by the defendant’s deception.” Able Home Health, LLC v. Onsite
Healthcare, Inc., S.C., No. 16-CV-8219, 2017 WL 2152429, at *4 (N.D. Ill. May 17, 2017)
(citation omitted). “The element of actual damages ‘requires that the plaintiff suffer actual
pecuniary loss.’” Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 739 (7th Cir. 2014)
(citation omitted).
A plaintiff may allege either deceptive or unfair conduct (or both) under ICFA. Siegel,
612 F.3d at 935; Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 575 (7th Cir. 2012). For a
business practice to be considered unfair, the Court considers “(1) whether the practice offends
public policy; (2) whether it is immoral, unethical, oppressive, or unscrupulous; [and] (3)
whether it causes substantial injury to consumers.” Robinson v. Toyota Motor Credit Corp., 201
Ill. 2d 403, 417 (Ill. 2002). A plaintiff does not need to satisfy all three criteria to support a
finding of unfairness. Id. at 418. “A practice may be unfair because of the degree to which it
meets one of the criteria or because to a lesser extent it meets all three.” Id. (citation and internal
quotation marks omitted). “[W]hether a practice is unfair depends on a case-by-case
analysis.” Siegel, 612 F.3d at 935. An ICFA claim for unfair practices need only satisfy Rule
8(a). Windy City Metal Fabricators & Supply, Inc. v. CIT Tech. Fin. Servs., Inc., 536 F.3d 663,
670 (7th Cir. 2008).
Here, Scion argues that the Court should dismiss Plaintiff’s ICFA claim (1) under the de
minimis doctrine because the loss of toner and paper from an unsolicited fax was only trivial
damage, and (2) because Plaintiff failed to sufficiently allege the element of unfairness as
required under the ICFA. While Plaintiff argues that Scion’s fax was immoral and unfair

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because it disadvantaged lawful advertisers and inflicted substantial, if incremental, damage on
recipients of the fax, this argument is unavailing. Plaintiff’s ICFA claim fails under both the de
minimis doctrine and the Robinson unfairness elements.
First, as the Court found in Savanna Grouip, Inc. v. Truan, No. 10 C 7995, 2011 WL
703622, at *3 (N.D. Ill. Feb. 22, 2011), a conversion claim for a single, unsolicited fax is not
actionable because the damages resulting from the alleged conversion of the fax machine, toner,
and paper are “unquestionably de minimis.” In Savanna, the Court explained that any damages
associated with receipt of an unsolicited fax were “negligible from the onset of the lawsuit” and
“any argument that the [ ] class action members’ de minimis damages may be aggregated is
misplaced because cumulative allegations of a putative class cannot be used to prop up an
otherwise trivial claim that is unable to stand on its own.” Id. (citation and internal quotation
omitted). The Court also noted that the plaintiff’s TCPA claim would remedy any alleged de
minimis losses associated with the plaintiff’s conversion claim. Id. (citing Rossario’s Fine
Jewelry, Inc. v. Paddock Publ’ns, Inc., 443 F.Supp.2d 976, 980 (N.D. Ill. 2006) (conversion
cause of action surplusage to federal claim); see also Brandt v. Board of Educ. of City of
Chi., 480 F.3d 460, 465 (7th Cir. 2007) (damages that are “minuscule to the point of
nonexistent” are de minimis ); Stonecrafters, Inc. v. Foxfire Printing & Packaging, Inc., 633
F.Supp.2d 610, 613 (N.D. Ill. 2009) (“actual damages from the conversion of the paper and toner
necessary to print an unsolicited fax advertisement ‘are minuscule, i.e., pennies per plaintiff’”)
(citation omitted).
Plaintiff’s ICFA claim similarly fails under the Robinson factors. While courts applying
the ICFA “largely agree that sending unsolicited fax advertisements offends public policy,”
courts are divided “over whether Robinson’s second and third factors are satisfied by the receipt

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of a single unsolicited fax. Able, 2017 WL 2152429, at *4 (quoting Stonecrafters., 633 F. Supp.
2d 610, 616 (N.D. Ill. 2009)). Here, in line with its de minimis analysis above, the Court is
persuaded by “those courts that have found the receipt of a single unsolicited two-page fax—
costing a couple of pennies worth of toner and paper—neither “oppressive” nor the cause of
“substantial injury” in violation of ICFA.” Able, 2017 WL 2152429, at *4. Simply put, “[t]he
improper use of one piece of paper, a small amount of toner, and a few seconds of an employee’s
time is not oppressive conduct, nor does it fit within the definitions of any of the other
terms.” Stonecrafters, 633 F. Supp. 2d at 616–17; see also Mussat, 2014 WL 3610991, at *3
(“one-page fax cannot be said to burden [Plaintiff] to an oppressive level” and “[o]ne or two
sheets of paper, the minimal toner, and the few seconds of a person’s time expended in response
to the unsolicited fax do not amount to a substantial injury”); G.M. Sign, Inc. v. Elm St.
Chiropractic, Ltd., 871 F. Supp. 2d 763, 770 (N.D. Ill. 2012) (“Improperly interfering with one
piece of [Plaintiff’s] paper, a tiny amount of its toner, and a trivial amount of its employees’ time
is not oppressive conduct.”); Paldo Sign & Display Co. v. Topsail Sportswear, Inc., No. 08 C
5959, 2010 WL 276701, at *4 (N.D. Ill. Jan. 15, 2010) (“The only burden placed on [Plaintiff]
was to throw the fax in the trash. This deed can hardly be classified as ‘unreasonable.’”). As the
court explained in Able, assuming a loss of 2 cents per page for each one-page fax, the class
would have to consist of several thousand before the “alleged harm plausibly reaches even
$100,” and by any standard, that is not a “substantial injury.” 2017 WL 2152429, at *5.
Accordingly, Plaintiff has failed to state a claim that the receipt of Defendant's
allegedly unsolicited fax violates the unfairness prong of ICFA or that the damages associated
with its claim are anything but de minimis. The Court grants Scion’s motion to dismiss
Plaintiff’s ICFA claim (Count II).

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B. Count III—Conversion
In Count III, Plaintiff alleges that by sending the unsolicited fax, Scion converted to its
own use the ink, toner, and paper belonging entirely to Plaintiff and other recipients of the fax.
To survive a motion to dismiss its conversion claim, Plaintiff must allege (1) an unauthorized
and wrongful assumption of control, dominion, or ownership by Scion over its property; (2) its
right to the property; (3) its right to immediate possession of the property, absolutely and
unconditionally; and (4) a demand for possession of the property. Able, N2017 WL 2152429, at
*5; see also In re Karavidas, 999 N.E.2d 296, 310 (Ill. 2013).
Scion argues that the Court should dismiss Plaintiff’s conversion claim (1) under the de
minimis doctrine because the loss of toner and paper from an unsolicited fax was only trivial
damage, (2) because Plaintiff failed to allege any demand, and (3) because it does not allege any
losses distinct from the TCPA claim so the conversion action is “mere surplusage.” Here,
regardless of whether Plaintiff sufficiently alleged a demand, Plaintiff’s conversion claim, like its
ICFA claim, fails because the damages alleged are de minimis.
As the Court discussed above, “any damages from the ink, toner, and paper in connection
with this [one]-page fax are plainly de minimis.” Able, 2017 WL 2152429, at *6 (dismissing
conversion claim relating to unsolicited fax); see also Stonecrafters, 633 F. Supp. 2d at 613 (“the
ancient maxim de minimis non curat lex might well have been coined for the occasion in which a
conversion claim is brought based solely on the loss of paper and toner consumed during the
generation of a one-page unsolicited fax advertisement.”); G.M. Sign, 871 F. Supp. 2d at 767–68
(same); Paldo Sign, 2010 WL 276701, at *3 (same); Sturdy v. Medtrak Educ. Servs. LLC, 2014
WL 2727200, at *5 (C.D. Ill. June 16, 2014) (same); Garrett v. Rangle Dental Lab., 2010 WL
3034709, at *1 (N.D. Ill. Aug. 3, 2010) (same); ABC Bus. Forms, Inc. v. Pridamor, Inc., 2009

14

WL 4679477, at *3 (N.D. Ill. Dec. 1, 2009) (same). Here, like in the cited cases, any damages
from the ink, toner, and paper used in connection with a single, one-page fax are de minimis and
do not support a conversion claim. 2
Accordingly, the Court grants Scion’s motion to dismiss Plaintiff’s conversion claim
(Count III).
C. Count IV—Trespass to Chattels
In Count IV, Plaintiff alleges that Scion’s unsolicited fax interfered with Plaintiff’s use of
the receiving equipment and thus constitutes a trespass to such equipment. A trespass to chattels
requires “[a]n injury to or interference with possession, with or without physical force, to
personal property.” Able, 2017 WL 2152429, at *7 (citation and internal quotation marks
omitted). Trespass to chattels can occur by “intentionally (a) dispossessing another of the
chattel, or (b) using or intermeddling with a chattel in the possession of another.” Id. (citation
and internal quotation marks omitted). “Harm to the personal property or diminution of its
quality, condition, or value as a result of a defendant’s use can also result in liability.” Id.
Further, causation and damages are elements of a trespass to chattel claim. Id. Trespass to
chattels it thus “on the same spectrum” as conversion and differs “only with respect to the extent
of interference with the property owner’s rights.” G. Neil Garrett, D.D.S., P.C. v. New
Albertson’s, Inc., 2014 WL 2198242, at *5 (N.D. Ill. May 27, 2014).

2

Plaintiff argues that if the Court rejects its conversion claim as de minimis, the Court will “overrule the
determination of both Congress and the Illinois legislature to prohibit junk faxing.” This argument is
unavailing. As the court stated in Able, “[i]n no way does the Court ‘overrule the determination of
Congress and the Illinois legislature in reaching this conclusion. The viability of a common law
conversation claim has no bearing on Plaintiff’s TCPA claim.” 2017 WL 2152429, at *6 n. 5 (N.D. Ill.
May 17, 2017). Similarly, the Illinois criminal statute relating to unsolicited faxes—720 Ill. Comp. Stat.
Ann. 5/26-3—does not provide a private right of action to recipients of unwanted faxes nor does it
“render[] unavailable the de minimis maxim in conversation cases.” Id.

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Plaintiff’s trespass to chattels claim, which Plaintiff did not support in its briefing with
any case law relating to unsolicited faxes in this Circuit, also fails. As an initial matter,
Plaintiff’s conclusory allegation that it “suffered damages” is insufficient because Plaintiff has
not alleged “that its fax machine was harmed in any way or the machine’s quality, condition, or
value diminished as a result of receiving this fax.” Able, 2017 WL 2152429, at *7. Additionally,
even if the Court assumed the existence of some damages here, the “fleeting interference” caused
by the transmission of an unsolicited fax also fails to state a claim under the de minimis doctrine.
Id. Put simply, any purported damage here would be nothing “more than a few pennies” and
thus, Plaintiff’s allegations cannot support a trespass to chattels claim. Id. (dismissing
unsolicited fax trespass to chattels claim under de minimis doctrine); see also G. Neil, 2014 WL
2198242, at *5 (same); Sturdy v. Medtrak Educ. Servs. LLC, No. 13-CV-3350, 2014 WL
2727200, at *5 (C.D. Ill. June 16, 2014) (same).
Accordingly, the Court grants Scion’s motion to dismiss Plaintiff’s trespass to chattels
claim (Count IV).

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CONCLUSION
For these reasons, the Court grants in part and denies in part Scion’s Rule 12(b)(6)
motion to dismiss.

Dated: November 20, 2017
ENTERED

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

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