James L. Orrington, II, D.D.S., P.C. v. Scion Dental, Inc.
1:17-cv-00884
N.D. Ill.Nov 20, 2017Background
- Plaintiff James L. Orrington II, D.D.S., P.C. received an unsolicited one-page fax on July 7, 2016 inviting dental practices to a free webinar; the fax lacked a TCPA-compliant opt-out notice.
- Plaintiff alleges Scion Dental, Inc. sent or caused the fax as part of a mass mailing to recruit providers to its claims-processing / network platform.
- Plaintiff asserts the fax was an unsolicited advertisement under the TCPA because the webinar functioned as a commercial pretext to market Scion’s services.
- Procedurally: Plaintiff amended his complaint after the court previously dismissed the initial complaint for failing to plausibly allege a commercial pretext; Scion moved to dismiss the Amended Complaint under Rule 12(b)(6).
- Court’s disposition: Denied dismissal of the TCPA claim (Count I); granted dismissal of state-law claims for ICFA (Count II), conversion (Count III), and trespass to chattels (Count IV) as de minimis or legally insufficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the fax qualifies as an "unsolicited advertisement" under the TCPA | Fax invited recipients to a webinar intended to introduce and sign up providers to Scion’s commercial platform; webinar served a commercial pretext | Fax was informational about a free webinar and did not itself advertise Scion’s services or show intent to market | Denied motion to dismiss TCPA claim — Amended Complaint sufficiently alleges commercial pretext given detailed allegations about Scion’s business model |
| Whether ICFA claim (unfair/deceptive practice) is viable | Sending unsolicited fax shifts advertising costs to recipients and constitutes unfair competition | Harm is trivial; damages are de minimis and do not satisfy ICFA’s substantial-injury/unfairness elements | Granted dismissal — damages are de minimis and Robinson unfairness factors not met |
| Whether conversion claim (paper/toner) survives dismissal | Receipt of unsolicited fax converted plaintiff’s paper/toner >= plaintiff seeks recovery | Loss of toner/paper from a one-page fax is trivial; claim duplicates TCPA remedy | Granted dismissal — de minimis damages cannot support conversion claim |
| Whether trespass to chattels claim survives dismissal | Fax interfered with use of receiving equipment and caused damages | Any interference was fleeting and damages de minimis | Granted dismissal — no plausible allegation of harm beyond trivial, fleeting interference |
Key Cases Cited
- Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732 (7th Cir. 2014) (Rule 12(b)(6) pleading standard and actual pecuniary loss requirement for damages)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (application of Twombly plausibility standard)
- Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541 (7th Cir. 2017) (TCPA prohibition on unsolicited fax advertisements)
- Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403 (Ill. 2002) (three-factor test for unfairness under the ICFA)