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Michael W. Kincaid DDS, Inc. v. Synchrony Financial

United States District Court, S.D. Ohio, Eastern Division

June 15, 2017


          Deavers Magistrate Judge.



         This 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 part.

         I. BACKGROUND

         This 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 Act.

         The 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).

         Synchrony's 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.).

         Synchrony 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 five faxes.

         Sychcrony's 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.”[1] (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.).

         The 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)).

         On July 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 CareCredit program.”

         On 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.).

         On 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 original)).

         Plaintiff 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 from ...

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