United States District Court, S.D. Ohio, Eastern Division
MICHAEL W. KINCAID DDS, INC. d/b/a RIVERSIDE FAMILY DENTAL GROUP, Plaintiff,
SYNCHRONY FINANCIAL, Defendant.
Deavers Magistrate Judge.
OPINION AND ORDER
C. SMITH, JUDGE.
matter is before the Court upon Defendant Synchrony
Financial's Motion to Dismiss (Doc. 5). Plaintiff opposed
Defendant's Motion (Doc. 11) and Defendant replied in
support (Doc. 13). This matter is now ripe for review. For
the following reasons, Defendant's Motion is
GRANTED in part and DENIED in
lawsuit arises out of six faxes sent by Synchrony to
Plaintiff between June 23, 2015, and August 13, 2015.
Plaintiff alleges that Synchrony's faxes constitute
advertisements without the opt-out language required by the
Telephone Consumer Protection Act, 47 U.S.C. § 227
(“TCPA”) as amended by the Junk Fax Prevention
faxes in question concern CareCredit, a health care financing
product offered by Synchrony to those in need of medical care
financing. Plaintiff worked with CareCredit in the past and
CareCredit representatives visited Plaintiff in person every
month or two to encourage Plaintiff to submit CareCredit
applications for Plaintiff's patients. (Doc. 1, Compl. at
¶ 16; Doc. 11, Mem. Opp. at 12). Beginning in May 2015,
Synchrony's sales tactics became more aggressive,
starting with an in-office visit where Plaintiff asked
Sychrony's CareCredit representative to leave the
premises. (Doc. 1, Compl. at ¶¶ 17-25). Synchrony
then began calling Plaintiff three times a day to solicit
CareCredit applications. (Id. at ¶¶
26-28). Plaintiff then informed Syncrhony they were
uninterested in any further phone calls and the faxes began.
(Id. at ¶¶ 28-30).
first fax to Plaintiff occurred on June 23, 2015, and
concerned “CareCredit Certification.” (Doc. 1-1,
June 23 Fax at PAGEID# 12). The fax noted “Action
Required: Complete your CareCredit Certification.”
(Id.). In the body of the fax, it stated
“We're sure you'll agree your
patients/clients rely on you to provide them
with the most accurate information so they can make care and
financial decisions that are best for them.”
(Id. (emphasis in original)). The fax informed
Plaintiff that the practice would lose its ability to help
patients who want to pay with CareCredit because Plaintiff
would no longer be able to process CareCredit applications.
(Id.). The fax gave instructions to access
CareCredit's website then directions to the Training and
Learning Center sections of the website. (Id.).
has provided a December 10, 2013 consent order
(“Consent Order”) between CareCredit and the
United States Consumer Financial Protection Bureau
(“CFPB”) it alleges provides the basis for the
faxes. (See Doc. 5-1, Consent Order). In the Consent
Order, the CFPB found that CareCredit was committing
violations of 12 U.S.C. §§ 5531 and 5536.
(Id. at 1). One of the CFPB's primary findings
was that CareCredit insufficiently trained its enrolled
providers regarding the delivery of information regarding the
promotional term of the card and did not monitor enrolled
provider's compliance with the law or CareCredit's
policies. (Id. at 4-5). In addition to numerous
other remedial measures, the CFPB ordered CareCredit to
“enhance its training curriculum for Enrolled Providers
. . . ” and to “retrain all Enrolled Providers
within 18 months after the Bureau's approval of such
training materials.” (Id. at 10-11). This
training program was allegedly the training program referred
to in CareCredit's first fax and four of the following
second fax, on July 15, 2015, asked “Will You Help
Us?” and encouraged Plaintiff to join the other
“186, 000 practices that accept CareCredit to complete
a short online training session so they are prepared with the
most up-to-date information should a patient/client walk in
with a CareCredit credit card and request to use it at the
practice.” (Doc. 1-1, July 15 Fax at PAGEID# 13). It
further stated, “[t]his happens quite frequently
because CareCredit is used, on average, 38, 000 times a day!
And another 189, 000 new cardholders, on average, are
approved every month. According to our records, you are one
of the few remaining practices yet to complete this simple
training.” (Id. (emphasis in original)). The
fax again warned Plaintiff that the practice would be
suspended if the training was not completed. (Id.).
July 21, 2015 fax concerned a data migration project
Synchrony was undertaking for CareCredit and informed
Plaintiff that the website may be unavailable but that
practices could process CareCredit transactions as normal,
that there would be minimal impact to processing transactions
and that practices could call “Provider Services”
with immediate needs. (Doc. 1-1, July 21 Fax at PAGEID# 14).
The fax noted that the migration was “to a new,
state-of-the-art data center, ” and that the
“long-term benefit is that we will have a new,
state-of-the-art data processing infrastructure to continue
serving your needs and protecting practice and patient/client
data.” (Id. (emphasis in original)).
27, 2015, Synchrony faxed about CareCredit again, informing
Plaintiff that the certification deadline passed and that
Plaintiffs “ability to submit CareCredit applications
will be suspended” unless an employee completed the
training as soon as possible. (Doc. 1-1, July 27 Fax at
PAGEID# 15). The fax stated “I'd like to ask for
your assistance. Your patients/clients rely on your team to
provide them with the most accurate information, especially
when it comes to financing their care.” (Id.
(emphasis in original)). The fax also suggested
“Providing patients/clients with accurate information
is our common goal and a requirement when offering the
August 6, 2015, Synchrony faxed Plaintiff a fifth time,
notifying Plaintiff that “Your deadline to complete
CareCredit Certification has Passed-Application Suspension
will Follow.” (Doc. 1-1, August 6 Fax at PAGEID# 16).
The August 6 fax again noted that “out of more than
185, 000 practices nationwide, you're among the few who
have not completed the sample, 25-minute, online training . .
. .” (Id. (emphasis in original)). Last, the
August 6 fax informed Plaintiff that “if a
patient/client wants to apply for the CareCredit health,
wellness, and beauty credit card at your practice, so they
can get the care they/their pets need and want, you will be
unable to help them until you have completed Certification
and have been reinstated.” (Id.).
August 12, 2015, Plaintiff received the final fax in question
from Synchrony. (Doc. 1-1, August 13 Fax at PAGEID# 18).
Synchrony's fax informed Plaintiff that Plaintiff could
no longer submit new CareCredit applications because
Plaintiffs account was suspended. (Id.). The fax
further explained the consequences of the suspension and how
Plaintiff could get the suspension lifted. (Id.).
The fax also noted that “[i]n 2014 alone, more than 26
million new cardholders were approved for CareCredit. These
are patients/clients who may not have been able to get needed
or wanted care for themselves or their pets if they had not
had the opportunity to apply for CareCredit with the help of
their provider.” (Id.). The fax encouraged
Plaintiff to complete the reinstatement process “to
continue helping patients/clients who desire a financing
solution or prefer to use special financing to pay for
treatment . . . .” ( Id. (emphasis in
filed this action on August 15, 2016, alleging violations of
the TCPA and requesting injunctive relief on behalf of itself
and an alleged class who received the same or similar faxes