ADA News

Miami—It's a testimony to this era of rapid information that an e-mail and a visit to a social networking site played a big part in attorney Ron Gossett’s decision to file a class action complaint against Brican America Inc. on behalf of some 500 dentists and optometrists.

That complaint, filed by Mr. Gossett March 16 against Brican in the U.S. District Court in the Southern District of Florida, alleges that Brican—a company that markets specialized computer and television screens for doctors' waiting rooms—used "fraudulent sales" to create a "pool of money for the related company." The complaint also says that at the time the fraud was executed, Brican "had no business with which it could possibly fulfill its contractual obligation to pay advertising fees, other than the money diverted to it from the fraud perpetrators."

The suit also names Brican America LLC; Brican America Financial Services; NCMIC Finance Corp. (doing business as Professional Solutions Financial Services); Jean Francois Vincens; Jacques Lemacon; Salvatore M. DeCanio Jr.; JJR Investments LLC; Lifestyle of Vision Inc.; Viso Lasik Medspas LLC of Florida; Viso Lasik Medspas of Charlotte LLC; and Viso Lasik Medspas of San Antonio LLC.

It is one of four known class action complaints pending against Brican.

Brican markets its equipment almost exclusively to health care practices, and doctors who sign leases for the computer equipment also sign marketing agreements that promise monthly fees for displaying advertising. Many of the marketing agreements also state that should Brican fail to pay the marketing fees, Brican will repurchase the leased equipment upon the client’s request.

Members who have called the Association confirm this, saying they agreed to lease the Brican systems as part of an overall transaction under which they would also receive fees in return for running certain content on the leased television/computer system.

Since late 2009, the website Leasing News Forum, which publishes leasing-related news, and the health care social networking sites, DentalTown and CafePharma, have seen Brican pop up repeatedly on their message boards.

Mr. Gossett, who owns a law practice in Hollywood, Fla., said prior to March of this year he had never heard of Brican, but by March 16, his firm Gossett & Gossett was working nonstop on the case.

According to Kit Menkin, Leasing News founder, Mr. Gossett previously impressed him with his work for the plaintiffs on the ongoing NorVergence litigation, in which customers allege they were stuck with long-term equipment rental payments even though they no longer received telecommunications services.

"Kit was impressed with how I handled that and so he suggested to the Google group (formed by plaintiffs who had leased the Brican systems) that I get involved," explained Mr. Gossett.

Mr. Gossett said Mr. Menkin gave him a heads up via e-mail and within two hours, dentists and other customers of Brican started contacting him.

As of April 27, 500 plaintiffs and "more joining every day" had signed with Mr. Gossett and Des Moines attorney Billy Mallory. The complaint alleges that Brican sold 1,672 systems that were leased by Professional Solutions Financial Services, and additional systems leased by other leasing companies. Mr. Gossett says the actual number of systems sold might approach 2,000.

At least three additional lawsuits seeking class action status have been filed—in Florida, California and New Jersey—all naming Brican America LLC and NCMIC (doing business as Professional Solutions Financial Services) as defendants.

On March 3, the Charlip Law Group, also of Miami, filed a class action complaint in Miami-Dade Circuit Court against NCMIC Finance Corp. (doing business as Professional Solutions Financial Services), Brican America Inc. and Brican American LLC.

According to David Charlip, who represents plaintiffs in a suit filed in Miami-Dade Circuit Court, his firm currently represents more than 50 optometrists and dentists. In the complaint, the Charlip Group alleges that Brican's agreement with the plaintiffs was a "pyramid scheme."

"This is the type of situation that calls for class-action treatment," said Mr. Charlip.

On April 15, attorney Kenneth J. Catanzarite of Anaheim, Calif., filed a class action complaint against NCMIC (doing business as Professional Solutions Financial Services); Brican America Inc.; Brican America LLC; Mr. Vincens; Mr. Lemacon; and Viso Lasik Medspas LLC of Florida.

The New Jersey complaint was filed by McKenna McIlwain LLP on behalf of Frank DeRienzo, O.D., an optometrist from Jersey City, N.J.
That suit, according to the complaint, seeks to "redress the fraudulent and malicious conduct" of Brican America LLC and NCMIC (doing business as Professional Solutions Financial Services), because, the complaint alleges, the defendants "misappropriated hundreds of thousands of dollars from plaintiff and similarly situated." It also seeks injunctive relief.

In preparing his complaint, Mr. Gossett said he used the transcripts, depositions and pleadings from a suit that was dismissed earlier this year between Brican and NCMIC Finance Corp., doing business as Professional Solutions Financial Services. PSFS sued Brican America Inc., in the U.S. District Court in the Southern District of Florida for breach of contract, seeking $38 million in damages.

Brican filed a counterclaim seeking several millions of dollars in damages, claiming that PSFS breached the contract by failing to fund more than $3 million in purchase orders issued by PSFS. On Feb. 23, the two companies reached a settlement with undisclosed terms, and the claims of each were dismissed by the court with prejudice. Although attorneys cannot share what specific advice they give clients because of attorney-client privilege, Mr. Gossett said several potential clients have asked him if they should continue to make payments.

"Whether or not you make the payments is a personal decision on your part," he tells them, but shared that he does have a commitment from the attorney for NCMIC that it will not file reports with the credit bureaus. If clients continue to pay, he reminds them that "the money which they pay to their adversary will be used by that very adversary to defend their claims."

More importantly, he said, if they pay, PSFS might claim that they are ratifying the contracts, which the clients want the court to determine to be unenforceable.

"It is likely that once suit is filed against his clients, whether in Iowa or as a counterclaim in the federal action, credit bureaus will report that fact," said Mr. Gossett. "In that event, the clients can advise the credit bureaus that the debts are contested."

In addition to posting a copy of the complaint at www.charliplawgroup.com/, the Charlip Law Group has also posted a fact sheet listing commonly asked questions about Brican.

Regarding the subject of lease payments, the Charlip fact sheet advises "unless and until we advise you to stop making payments on your rental agreements, you should continue to make your monthly rental payments."

Mr. Gossett told the ADA News that he prefers that his clients not discuss the case simply to protect the claims of some 500 clients from the potential error of one.

"This is going to be a long process," he said. "This is going to take some time before there's a resolution. This is not going to be resolved this summer. This is going to take 2-3 years, maybe even another year.

"You are going to have to let go," he tells the clients. "You've handed it to me and you're going to have to let me handle the process. I will keep you informed."

The Charlip fact sheet concurs, saying, "we reasonably anticipate that will not be able to obtain quick settlements. In our experience you cannot obtain a good settlement until the other side perceives that not only are you ready, willing and able to go to court, but that you are very eager to get there."

Brican America Inc. has been in business since 2004 and has about 2,400 clients, of which company president Mr. Vincens told the ADA News in March, "roughly 1,900-2,000 are dentists."

Mr. Vincens said he wanted his customers to know "that we are doing everything in our power in order to clean up everything that has to be cleaned up" and that the company needs "time and patience to give the customer what they are expecting."

When reached by telephone on April 23, NCMIC President Greg Cole told the ADA News that while he could not comment on the lawsuits, NCMIC d/b/a PSFS has "no affiliation with Brican" and "never has."

Members who have questions about Brican can contact their Brican representative, or contact the company using the resources offered on its website: phone at 1-866-588-6995 or 1-786-388-6995; fax at 1-786-388-1489; or www.bricanamerica.com.