James L. Orrington, II, D.D.S., P.C. v. Scion Dental, Inc. et al
MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 10/7/2019: For the reasons stated in the accompanying memorandum opinion and order, the defendant's motion for summary judgment 66 is granted. Enter judgment order. Civil case terminated. Mailed notice(air, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
JAMES L. ORRINGTON, II, D.D.S,
on behalf of plaintiff and the class
members defined herein
SCION DENTAL, INC. and
JOHN DOES 1-10,
No. 17 CV 884
Judge John J. Tharp, Jr.
MEMORANDUM OPINION AND ORDER
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.
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.
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
Relying on Ira Holtzman, C.P.A. v. Turza, 728 F.3d 682, 683 (7th Cir. 2013), the Court
previously determined in its analysis of Scion’s first motion to dismiss that the fax in question was
unsolicited because it contained neither an opt-out notice nor instructions to allow recipients to
stop receiving future faxes. Mem. Op. and Order, p. 4, ECF No. 27. See Turza, 728 F.3d at 683
(“Even 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.”). This Court held that, notwithstanding the D.C. Circuit’s
decision in Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078, 1083 (D.C. Cir. 2017), which
held “that the FCC’s 2006 Solicited Fax Rule is unlawful to the extent that it requires opt-out
notices on solicited faxes,” Turza’s holding remained binding on district courts in this Circuit until
and unless the Seventh Circuit says otherwise. In Brodsky v. HumanaDental Ins. Co., 910 F.3d
285, 289-90 (7th Cir. 2018), the Seventh Circuit expressly considered whether Bais Yaakov is
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.
binding in this Circuit under the Hobbs Act, 28 U.S.C. § 2342, but declined to decide the issue
definitively. Nevertheless, the Brodsky court acknowledged that Bais Yaakov had “drained [the
Solicited Fax Rule] of a great deal of force.” Id. at 290. Further, the Court of Appeals expressly
held that the TCPA itself—as distinguished from implementing regulations like the Solicited Fax
Rule—does not require opt-out notice on solicited faxes. That holding is in considerable tension
with Turza, given Turza’s exclusive reliance on the statute itself for its statement that even solicited
faxes require an opt-out notice. And though Brodsky does not definitively sound the death knell of
the Solicited Fax Rule in this Circuit, it appears that the coup de grâce may nevertheless have been
delivered—by the FCC itself. In November 2018, the FCC eliminated the Solicited Fax Rule and
did so with some retroactive effect, as it dismissed as moot all pending applications for retroactive
waivers. See FCC Order, DA 18-1159 (available at https://docs.fcc.gov/public/attachments/DA18-1159A1.pdf). Scion has not argued that the Court’s prior ruling that the fax must be deemed
unsolicited should be revisited, however, so the Court need not fully explore the implications of
the FCC’s elimination of the Solicited Fax Rule. That is particularly so since reversing course
would not change the outcome here. Whether solicited or not, the fax in question was not an
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”);
Scion posits that this argument is “moot” because it was not raised during briefing for
either of the previous motions to dismiss. Def.’s Reply in Support of Mot. for Summ. J. p. 8, ECF
No. 79. While Orrington’s argument could have been raised in connection with the prior motions,
there is no requirement to raise every available legal argument in opposition to a motion to dismiss.
To the contrary, complaints are not required to plead legal theories of any kind and a claim survives
a motion to dismiss upon a demonstration that it is plausible under any single legal theory. It might
be risky to hold one’s fire in opposing a motion to dismiss, but it is not waiver.
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 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
The 2006 FCC Rule at 25973. Orrington advocates for a plain language application of the 2006
FCC Rule to the current case and argues that the Court should in turn find the fax to be an
advertisement under a per se rule. To support its position, Orrington relies largely on PDR
Network, in which the Fourth Circuit interpreted the 2006 FCC Rule to mandate a per se rule in
this context.3 PDR Network, 883 F.3d at 467.
Unlike the Fourth Circuit, the Seventh Circuit has not yet weighed in on this issue. Still,
when presented with similar arguments in the past, most courts in this district have declined to
implement a per se rule. See, e.g., Gerber v. MedSolutions, Inc., 17 C 5553 p. 4, ECF No. 52 (N.D.
Ill. May 15, 2018) (Gettleman, J.) (“Until the Seventh Circuit provides some guidance, this court
Of note, the U.S. Supreme Court recently vacated the Fourth Circuit’s opinion and
remanded the case to the lower court for further consideration of two “preliminary issues” relating
to the Administrative Orders Review Act, more commonly known as the Hobbs Act, 28 U.S.C.
§ 2342 et seq. PDR Network, LLC et al v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051,
2055-56 (2019). The Hobbs Act precludes district courts from disregarding administrative orders
like the 2006 FCC Rule. PDR Network, 883 F.3d at 464. The Supreme Court has not, to this point,
determined whether the 2006 FCC Rule promulgates a per se rule or whether any such rule is
binding on district courts.
remains convinced that the proper interpretation of the 2006 Rule is that there must be a
commercial nexus to the sender’s business for a fax promoting a “free” seminar to be considered
an advertisement"). The Court agrees with the Gerber court’s determination and finds that a plain
reading of the 2006 FCC Rule leads to the conclusion that there is no per se rule against all
unsolicited faxes detailing free goods and services. The fact that the 2006 FCC Rule provides
exceptions for both informational and transactional faxes indicates that the rule is, by definition,
not per se. Moreover, the Court concludes that Scion’s fax concerning a webinar offering training
on updated features of the Portal fits squarely within the recognized exceptions to the 2006 Rule.
The first of these exceptions states that “facsimile communications that contain only
information, such as industry news articles, legislative updates, or employee benefit information,
would not be prohibited by the TCPA rules.” 2006 FCC Rule at 25973 (emphasis added). To
determine whether a fax is a “bona fide informational communication,” the Rule then lays out a
variety of factors that the FCC can consider, including the frequency of communication and the
recipient(s) of the fax. Id. The presence of these types of factors further evidences that there is no
per se rule. Moreover, the fax in question is the very type of informational communication
envisioned by this exception. Scion distributed the fax to inform providers of the new updates to
the Portal. While Orrington is correct that the fax included information regarding a free webinar,
it misses the mark in ignoring that the only recipients of the fax were in-network providers who
already had access to Scion’s Portal and that Portal access is not available for purchase.
Similarly, the fax also falls under the 2006 FCC Rule’s transactional notice exception,
which states in part that faxes are not advertisements so long as they “notify the recipient of a
change in terms or features regarding an account, subscription, membership, loan or comparable
ongoing relationship, in which the recipient has already purchased or is currently using the
facsimile sender’s product or service.” Id. Although the facts of this case differ slightly from the
examples laid out by the FCC, the recipients of the fax were all members of UHC’s provider
network, which in turn meant that they had an existing commercial relationship with Scion. And
regardless of whether the in-network providers actually used the Portal, they all had access to it.
In short, Scion’s fax merely notified the in-network recipients of updates to a service to which they
already had access and offered the providers training relating to those updates.
To see that the fax in this case falls within these exceptions, let us simplify the scenario by
removing Scion for a moment. Imagine UHC sent Orrington a fax saying: “Here is how to submit
insurance claims online.” That information would not be an advertisement; it would be the delivery
of information necessary to give effect to the commercial transaction—the provision of
insurance—between UHC and Orrington. As such, it would plainly fall within the informational
and transactional communication exceptions to the 2006 Fax Rule. Adding Scion to the mix as the
party who provides the instruction on how to submit claims does not change the nature of the
communication; it merely changes the identity of who is sending it. What would be an
informational, transactional communication between the principals remains an informational,
transactional communication when a third party delivers the same information. 4
Orrington also posits that this Court’s opinion in Mussat v. Enclarity Inc., illustrates that
a showing of pretext is not required for a fax to constitute an advertisement. Mussat v. Enclarity
Inc., No. 16-CV-07643, 2018 WL 1156200 (N.D. Ill. Mar. 5, 2018). Although correct on this point,
Orrington mischaracterizes that finding. As this Court explained in Mussat, no pretext is needed if
the fax, like the one in that case, “explicitly mention[s] a commercially available product or
service, or express[es] an intent by the defendant to market its products or services.” Id. at *3. The
fax in Mussat indicated that the defendant’s services were available for purchase by specifically
referencing “clients.” Id. Also, to stop future faxes from arriving, the fax listed a hyperlink to the
sender’s website that contained, among other things, commercially available products. Id. at *2.
As a result, the Court determined that “the form fax at issue here, on its face, declares the
commercial availability of [the defendant’s] services. Id. at *4. Scion’s fax, unlike the fax in
Mussat¸ is not an advertisement on its face and Orrington therefore must prove that the fax was an
Orrington argues alternatively that Scion’s fax was a pretext to advertising, but that
argument fails for essentially the same reasons. As detailed above and not disputed by Orrington,
the fax broadcast the availability of free webinars whose sole purpose was Portal training. There
was no commercial element to the webinars; nothing was sold or offered, and Scion did not
monetize webinar attendees in any way. See Sandusky Wellness Center, LLC v. Medco Health
Solutions, Inc., 788 F.3d 218, 222-23 (6th Cir. 2015) (concluding that when the good or service
detailed in the fax is not available to be bought or sold then the fax is not an advertisement);
Ameriguard, Inc. v. University of Kansas Medical Center Research Institute, Inc., No. 06-0369CV-W-ODS, 2006 WL 1766812 at *1 (W.D. Mo. Dec. 2 2014) ("[The fax] . . . does not announce
Defendant is providing or otherwise has available goods, services, or property."). Additionally, the
fax recipients already had access to the Portal, which is not available for sale to anyone. In fact,
Scion does not sell anything to dental providers, who are not a part of Scion’s client base.
To rebut these facts, Orrington makes three principal arguments. First, the plaintiff claims
that Scion’s contract with UHC “requires that Scion create, host, promote and maintain a secure
web portal to be used by Providers.” Pl. Resp. in Opp’n, to Def.’s Mot. for Summ. J., p. 5, ECF
No. 74) (emphasis added). Scion’s fax, Orrington contends, therefore constituted advertising
because its purpose was to fulfill Scion’s contractual obligation to promote the Portal. In fact,
however, the contract contains no such requirement. While it does require Scion to “create, host,
and maintain” the Portal, it does not require Scion to promote the Portal; Orrington has
conveniently added the word “promote” where it does not appear. Pl.’s Resp. to Scion’s Statement
of Undisputed Material Facts, Ex. 1 p. 6, ECF No. 75. Orrington also asserts that “Scion is required
to . . . encourage use of [the Portal] under its contract with United.” Pl. Resp. in Opp’n, to Def.’s
Mot. for Summ. J., p. 5, ECF No. 74. That, too, is a misstatement; the contract does not contain
any requirement that Scion encourage the Portal’s use or provide training on its features. Orrington
cites his statement of additional facts Nos. 73-77 for this proposition, but those statements do not
make these assertions; the only Orrington statement of fact that asserts that Scion is contractually
obligated to “promote” the Provider Portal is No. 84, and Scion disputed that statement, expressly
noting that “Scion’s contract with United Healthcare . . . does not require Scion to promote the
Provider Web Portal.” ECF 78 at 3-4.
Orrington’s second assertion is that Scion has a broad requirement to keep in-network
providers happy and that the Portal helps it do so. Scion rightfully counters that its compensation
received from UHC does not vary in any way based on the Portal, with the exception of the general
requirement that it maintain one. In other words, Scion does not receive additional financial
compensation for increasing Portal usage among providers. Although the Court does not dispute
that Scion is motivated to keep providers happy (such providers being less likely to complain to
UHC about its claims processing procedures and making it more likely that UHC will retain Scion
as its claims processor), the resulting economic benefit is too vague and undefined to warrant a
finding that the fax is a pretext to an advertisement. See, e.g., Sandusky Wellness Center, LLC 788
F.3d at 225 ("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"). Providing good customer service is, of course, intended to help retain
existing clients and obtain new ones. Nevertheless, every communication that merely provides
good customer service by delivering information that allows customers to use services to which
they are already entitled does not constitute an advertisement.
The plaintiff draws an analogy as the basis for its third and final assertion. Orrington
contends that the fact that Scion does not sell products or services to dental providers is analogous
to cases in which faxes targeted potential intermediary sellers or promoters. See, e.g., AL and PO
Corporation v. Med-Care Diabetic & Medical Supplies, Inc., No. 14-CV-1893, 2014 WL 6999593
(N.D. Ill. Dec. 10 2014) (rejecting defendant’s argument that complaint should be dismissed
because the fax intended to recruit intermediaries to sell the sender’s goods and services).
According to the plaintiff, Scion’s fax still violates the TCPA because the dental providers who
received the fax resemble the type of intermediary described in AL and PO Corporation. This
analogy fails, however, because there is no additional party to which Orrington could market or
sell access to the Portal. In other words, Scion cannot be recruiting the plaintiff to be an
intermediary because there is no one to whom Orrington could sell access to the Portal—access to
the Portal is not something that can be purchased. 5
In short, the undisputed facts show that Scion processes claims for dentists on behalf of
UHC and other insurance providers. It maintains an online Portal through which dentists in the
supported networks may submit claims. It trains dentists in the supported networks free of charge
and sent a fax advising them of available training on new features of the online system. The fax
offered no products or services for sale and provided no information about those who participated
in the training sessions. This fax was not an advertisement. It was simply good customer service.
Orrington also compares Scion’s fax to messages distributed by so-called fax
broadcasters, or third-party entities that transmit faxes on behalf of others for a fee. No such entity
is involved in this case, so this comparison is inapt. The complaint makes no allegation that Scion
was sending a fax to advertise on behalf of someone else, such as UHC.
For the reasons stated above, the Court finds as a matter of law that Scion’s fax was not an
advertisement as defined by the TCPA. Scion’s motion for summary judgment, ECF No. 66, is
John J. Tharp, Jr.
United States District Judge
Date: October 7, 2019
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