Chicago federal court is the venue an Ohio dentist chose for his class-action complaint against a Connecticut-based lending firm he said repeatedly placed calls to his office and sent unwanted faxed ads promoting its consumer credit products, in violation of federal law.
Michael W. Kincaid, a dentist who operates Riverside Family Dental Group in Columbus, Ohio, accused Synchrony Financial, of Stamford, Conn., of violating the Telephone Consumer Protection Act by inundating his office with unsolicited faxes for CareCredit, a consumer credit product it markets to dentists, veterinarians and other medical services providers, ostensibly to help patients pay for the services.
Kincaid noted Synchrony “does extensive business” in Illinois and “has numerous employees and customers” in the court district, and “therefore has established minimum contacts showing it has purposefully availed itself to the resources and protection of the state of Illinois.”
The jurisdiction is appropriate, he said, because at least one member of the putative class is a citizen of a different state than Synchrony, and because “the amount in controversy exceeds $5 million, exclusive of interests and costs. … In addition, Synchrony has sent an extensive number of junk faxes to individuals and businesses residing in this district.”
According to Kincaid, all CareCredit offers is a “is a credit card designed to be used by medical patients that charges an annual interest rate of 26.99 percent.”
Kincaid’s complaint alleged Synchrony sent a representative to visit the dental office. Kincaid noted the person “showed up every two months or so to encourage the staff to get patients to submit CareCredit applications.” During a visit in early May, the “representative was very rude and aggressive to the staff.”
Kincaid said his clinical care coordinator informed the representative the practice would not push CareCredit to its clients, after which the representative said “the dental office would be able to sell $20,000 treatment plans if they used the CareCredit product.” Despite the coordinator insisting the practice does not push treatment plans at such expense, the sales representative remained on site.
Kincaid alleged, after that visit, CareCredit telemarketing representatives called three times each day, despite being told the practice was not interested in offering the service. On six dates from June 23 to August 13, Synchrony sent CareCredit advertisements via fax. The faxes did not contain an opt-out note, which is required by the TCPA:
“Among other things,” the complaint stated, “the Opt Out Notice provision requires the sender to clearly disclose in the body of the fax that recipients may request that the sender stop sending them fax advertisements — and that failure to remove the recipient from the sender’s database within 30 days of such a request is itself a violation of the TCPA.”
Kincaid argued the opt-out omission qualifies all CreditCare faxes as TCPA violations, even those sent to recipients with whom Synchrony had an established business relationship. On the website for Kincaid’s practice is the phrase “financing is available through CareCredit” with the words “CareCredit” marked as a hyperlink pointing to that service’s site.
In addition to class certification and a jury trial, Kincaid seeks an enjoinder preventing future telemarketing violations, another enjoinder preventing altering or destruction of records that could be used to identify class members and an award of $500 for each negligible TCPA violation and $1,500 for each willful violation.
Kincaid’s attorneys are Brian K. Murphy, of Murphy Murphy Moul and Basil, of Columbus, Ohio; Lauren E Snyder, of Chicago; Matthew P. McCue, of Natick, Mass.; and Edward A. Broderick and Anthony Paronich, of Broderick Law, Boston.