his court counsel my name is michael coyle i represent a us medication solutions and didn't get our day in court at the district court level we believe that a summary judgment motion was improvidently granted we're going to ask that you reverse that and send it back to court so we can have a trial on these issues and this is a this is a t c p a case but this is going to be about somebody get a fax for a trip to cannes coon or your student loans are paid ask medication solutions sent these facts to its customers ask medication solutions is a company that provides pharmaceutical dispensing services for thousands and thousands of physicians across the united states who have their own pharmacies in their medical practices the state of the are in two thousand and ten when these faxes went out with these doctors offices that there were an encrypted e mails and that we routinely sent fax information back and forth between these doctors clinics to provide them with the services that they signed up for we believe that we had express permission and consent to deal with these doctors offices that this is a very unusual case in the context of a t c p a because we're dealing with our own customers and in this case the pharmacy information that we're sending back to forth to these doctors is protected in some cases i nvolves the ability of people in these doctors offices to actually dispense medications it's contracts it's forms and had we given the opportunity the evidence in the case would have shown that we had the express permission and consent of our clients to send them these faxes now pursuant to the t c p a to be subjected to liability the facts that is sent must be unsolicited faxes unsolicited the sent to persons who have not given their prior expressed invitation or permission to receive it if the fax is not unsolicited it doesn't need to have an opt out notice now the st issue i want to talk about is again i believe the district court improvidently granted summary judgment on liability in order to overcome summary judgment we had to show two things we had to show that we had prior express c permission from our customers to send a fax which we believe we showed in the nd issue is a s medication bought this business a complete asset purchase from a company called all scripts but we went right into their office it was the same company the same employees the same customers now we never got to the nd issue because the court we believe put a heightened burden on us in our summary judgment provoked we we provided more than ample evidence of material facts we thought we were going to have a trial but we didn't get to it the court disregarded the affidavits we submitted as insufficient and too thin and now i have in my hand one of the affidavits we submitted and it was from one of the doctors group the family wellness center and they said we gave all scripts permission to send us faxes and we consented to ask medication to send us information and facts and it was in evidence and we had probably ten of these five in our case and and other affidavits from all scripts before us the district court describe insufficient or too thin the court held that prior x held a prior express permission defense is insufficient as a matter of law even when the writ the recipient expressly consents to total of oh how many how many different faxes that we sent out i think the total was eleven thousand four hundred and twenty two dollars but again as far as proving a material issue a fact that affected the class we probably produce more than sufficient evidence that we should have got information well i think that it was as far as the summary judgment is concerned i think it entitled us a key to get to the to the jury and have them decide this issue because i think the problem is and the c p a case is what's so unusual about this is this isn't a spam or something that's clearly unsolicited what makes this case so unique and why we are entitled to our day in court is these are customers these are people who were just picking out of thin air with these are customers who consented were sent in a pharmacy information remember when you go get a prescription filled if a doctor's runnin his own pharmacy it's no different than going to walgreens you have to have adjudication contraindications co pays software we provide all that information and in this case we never got a chance to tell our story because under the t c p a a the judge entered the summary judgment on liability in august and we never even got to court on any of the issues now the athlete argues that this cases holtzman number one is binding on this issue and they cited holtzman one which erroneous lee states that an opt out notice is required when a fax is sent with prior express permission or invitation contrary to the t c p a and it's contrary to this court's decision in broad scope nd this holtzmann case never determines whether prior express permission or invitation was ever given it relied solely on the holtzman was whether the fact subject faxes contain advertisements in here out of there is no dispute in this case they were ads but we believe we had our long standing relationship the ability to send them this is no different than walgreens one day and walgreens l l c the next were the very same company they always had their customers permission to send them an advertisement be a fax this was their policy  addition they had a software called sales force where customers can provide their fax number and then give information whether they want to receive faxes or they don't receive fax we believe that there was more than sufficient evidence in the record that our customers gave us permission to send a fax is now the facts in this case is actual adjudication software that pharmacists used to determine co pays when their patients come in so again it's not sal and you know toner trips to can't cooder retire student loans these are our customers now the nd thing we needed to prove was that we stepped into all scripts shoes we purchase their medication business all their advertising all their sales and purchase correspondence all their customer information their database their trademarks we assumed all their assets and liabilities and listen when you buy a company what's what's the one thing we're going to buy from i mean your customers it was a critical part of the now that the athletes going to argue that well it's all silent on transfers to ensure that there is no as far as the information the transfer of the actual consent but again we're purchasing the entire of the business they they haven't really come up with an argument that we didn't rightfully acquire the right to communicate with the customers who were the subject of this business so your honor i believe that the district court put a heightened standard on us that we were entitled to come in and show that this is an arm's length transaction business that we're communicating with these doctors groups nationwide and the evidence will be that there's twenty to thirty would agree that your honor but i also agree that the you know this is this is how business is done in this country and we didn't buy into the building and the fact that prescriptions we bought the lock stock and barrel and a simple i understand that but it's a we normally liberally construe that i understand and i think that it's situations you could if it was somebody else that was buying it but we just stepped right into their shoes it was a seamless they were our customers these are physicians they're running pharmacists pharmacies and their doctors practices we didn't get our day in the courthouse and we're title to it and i ask that you send this case back so we can tell our story and i think this needs to be heard by the finder of fact no two other things if you decide that you're not going to send it back for trial i think we're entitled to one remember they never prove their damages now you asked a question your honor about there was eleven thousand four hundred and twenty two faxes that's correct so here's the problem that they have because this is not tirzah in terms of there was four hundred twenty five dollars faxes four hundred and twenty five dollars people that got the faxes and they got a whole pile of four hundred and twenty five dollars people here in chicago in this case the fax target it could be dr mcgillicuddy who's running the pharmacy but there could be six different doctors in that office now one thing i do know that there's a difference between us they have the burden of proof and they never proved who the person who is entitled to the five hundred dollars is who's fax machine it was whose toner it was whose ink it was and they didn't prove that and i think it's fatal to their claim because the burden of proof of damages is always on the plaintiff in this case it didn't is that the law well the problem is is there's a difference between the target of the facts and the recipient person who sustained the damage in terms it wasn't an issue because you knew exactly who it was they argued it turns as a political here it's couldn't be farther from tirzah there's sixty million sixty two thousand doctors out there and what the district court said is this will send a five hundred dollars check to every eleven thousand four hundred and twenty two dollars here's the problem who's going to get the money the simple fact is is that that was their burden and they didn't prove it so if you're not going to give me a trial which i'm asking you to do then it has to go back and have an evidentiary hearing at a minimum on the issue of who gets the who gets the money because that was their burden of proof and they didn't comply with it they don't care they just want us to send out eleven million four hundred and twenty two thousand five hundred dollars checks and they don't care who gets them but that bird is and them the money needs to go to the person who actually sustained the damage and they didn't comply with their burden and that brings me to what happened in this cases is that you know things started happening quick the judge entered judgment in august and then he said this case is going to be off my dock in assembler well  what's and they submitted two thousand pages of material about who gets these checks on their motion for money damages on the next giving and the following tuesday when we asked for leave to submit a syrup liar the judge says well you're too late we were prejudiced and we were entitled to submit evidence and respond to that because once the judge entered judgment on liability summary judgment liability he almost immediately switched to this damage phase and we're entitled to respond to that the last issue is it goes to this distribution plan and i think it dovetails back to the eleven thousand four hundred and twenty two this is not tirzah we're not asking people to swear they got the facts our consent to the attorney's fees we need to send a fax out to say did you get this backs are you the person of the sixty thousand that received i'd like i think i' advertisement sent to a telephone that there were i have a problem with damages maybe that's just too bad this court has previously observed the damages are what they are you could disagree with them from a policy perspective some people would say the damages are draconian they're too high some people would say they're too low you know people hate getting calls on their you know robo calls on their cell phones they would say shouldn't be five hundred dollars per per call it should be capital times in the fax context and the call context hard to figure out where it came from and if you want to listen to the who you know you recover from even if you can i mean there's a there's a science and kind of an art to it but in this case it was easy because it says it's a dash yes medication and we have this great new product for you we you know we were formerly all scripts but now we have this new software pedigree our ex pro you know software program that we'd like so  this case under rule twenty three b three and that's significant because it means the defendant is not contesting a few things one that common issues predominate over any individual issues into that a class action is the superior way to decide this case that that it's manageable to decide all of the class members claims in one fell swoop that concession is fundamentally inconsistent with a s's argument that you can't enter a judgment based on the purely mechanical calculation of the number of violations times the number of times the statutory damages amount unless you identify each class member unless you identify who is going to get each of you know a portion of the five hundred dollars check that is really a back door argument against class or ticket but they're trying to seek it in to a to novo review instead of the abuse of discretion standard that would ordinarily apply a class certification it's also reminiscent of the old ascertain ability arguments that used to come up that this court dispensed with in the mullins versus direct digital decision in two thousand and fifteen those arguments about well do you have to identify the class members before serve occasion or do you have to proposing administratively feasible way to identify them and what this court clarified moleyns was there is no free standing ascertain ability requirement any of those concerns how do we give notice to the class how do we pay out any recovery if there is one dollar those are concerns under manageability which one of the factors that goes into rule twenty three  so it's in some sense what it actually is he's trying to do here is just undermine the class certification and come up with a rule that yes you can certify a class and if you c p a case is long as the class doesn't with as long as you don't actually enter judgment on one facts by the way it was sent to eleven thousand four hundred and twenty two fax numbers but it's one template one advertisement that was sent to that many and so the only element they're disputing here is prior expressed invitation  receive a fax ad requires that the consumer understand that by providing a fax number he or she is agreeing to receive faxed advertisement it's not enough close quote it is not enough that the recipient say yeah you can send me information or yeah i can sense you sending it back so you have to get their permission to send them advertisements and that's important because once you get that permission you can keep sending them you know we always got permission of course we always got permission to send us but when you look at his testimony we stop what he was talking about was one off axis such as like disaster preparation or messages about data integrity he wasn't talking about you know sending fax advertise to all scripts the main claim is that everybody in this class including physicians how source is listed in the all scripts sales force database that's a for the st step is did all scripts did all scripts have prior express imitation that's the st question and then the nd question would be if you answer that and if you found there was some genuine issue of material fact about whether all scripts had prior express permission the secondary question and where we would ask the court to affirm on an alternative basis is that even if all scripts had prior to us from it can't transfer it to eight ashes you can't buy express permission as express permission prism in private t c p litigation there they're controlling so the f c c held that the sender must obtain the prior press invitation from becomes consumer and that's what judge rely on here he didn't hold it he observed that it appears that under the two thousand and six orders plain language it would appear a dash us solutions and hoff cannot avail themselves of the prior expressed concerns but he held that he didn't need to  consider would constitute sufficient evidence of express permission that the summary judgment that summary judgment the defendant inters raises that argument he argued you can't enter summary judgment against me because there's a genuine issue about whether some of these class members consented because they're my students he was an attorney and that there are students in my clients and that he also got some numbers from  unsolicited fax advertisement you can send an unsolicited fax ever to the t c p a and under the junk fax prevention act of two thousand and five defense counsel said this case is really unusual really unique because they're sending faxes just say your client has a derivative clone no i'm saying they're the defendants prior express permission defense is derivative there they're relying on they're saying all scripts got permission and then they transferred that's why congress enacted the junk fax prevention act of two thousand and five that's codified in forty seven u s c section two to seven b one c and then there are small roman numerals one through three and congress created this safe harbor for this exemption in there for situations where it's tailor made for this situation for situations where one there is an established business relationship between the sender and the rec one there is the voluntary communication of a fax number from the recipient to your sender and three the fax contains a compliant opt out notice telling the recipient how to avoid future fa you comply with those three you can send unsolicited fax advertisement just have to tell people how to make them stop and what happened in terza was the defendant said i had consent from everybody and this court interpreted that kind of incline implied consent where you say while there is customers maybe they wouldn't mind receiving you know fax advertising that's what congress did it said you know we're going to infer a certain general level of consent here and we're going to say you can send fax ever ties with your customers but you have to tell them how to make the faxes stop in case they don't want to many more that's what eight actions didn't do you hear it as just use no opt out notice whatsoever it's not a case where there's a no no if you mean once the sender gets permission and they send as many as they want different things you have to notify them every time you send does a send opting out yes yes of course it has been every right to the last question and she has the brodsky case completely rejected with counsel just told you if you have an established business relationship and what this court to the members of the spaniel decided and brought keep brodsky admits that he had a market agreement that's a preexisting itself requires opt out notices unsolicited fax it does not and nothing in holtzman the case they just cited to you nothing supports in grafton such language on the statute as the opening sen that opinion signals the issue there had to do with unsolicited fax these are our customers you not get spam phone calls about student loans and trips to can't coom we have a relationship with these people in this court has rejected the argument that the council just made to you they don't have to have an op that requires a condo briefly what is the evidence that you would seek to present on the issue of i mean we were just trying to get to trial not we we've got derailed on the way and the significance is to answer your previous question the t c ph does not come up with what constitutes permission our consent that's a question of fact give me a chance we can prove that because these are our customers and this isn't spam email and we never got the chance and all due respect to the judge from august he said this case is going to get resolved in december and it was we never got  court we're entitled to a trial on these issues and i think a jury is going to say everything we did is appropriate and we don't all this five million seven hundred thousand dollars was really the three limitation on discovery during that room short period of august  late i already entered my order so we we did in all due respect we didn't get a fair shake or a title to a trial it's a lot of money and i think the fact finders going to find that we don't owe this money and we've asked for that relief thing is if you don't give us that we need to put together a notice because this is a consumer statute and it's not the person who's fax number gets the five hundred bucks it's the consumer and at least the notice has to go out and i know it's ten