IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

PHYSICIANS HEALTHSOURCE, INC., 

an Ohio corporation, individually and as 

the representative of a class of similarlysituated persons,

Plaintiff,

v.

ALLSCRIPTS HEALTHCARE 

SOLUTIONS, INC. and ALLSCRIPTS 

HEALTHCARE, LLC

Defendants.

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No. 12-cv-03233

Magistrate Judge Cole

ALLSCRIPTS’ MOTION FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITY

AND MEMORANDUM IN SUPPORT

ALLSCRIPTS HEALTHCARE SOLUTIONS, INC. and ALLSCRIPTS HEALTHCARE 

LLC (collectively, “Allscripts”), by and through their attorneys, respectfully move for leave to 

file the attached recent decision from the United States Court of Appeals for the District of 

Columbia Circuit, Bais Yaakov of Spring Valley, et al. v. FCC, et al., --- F. 3d ---, 2017 WL 

1192909 (D.C. Cir. Mar. 31, 2017) (attached hereto as Ex. A) (“Bais Yaakov”), as supplemental 

authority in further support of Allscripts’ Corrected Response in Opposition to Plaintiff’s 

Amended/Corrected Motion for Class Certification, ECF No. 227-1, (the “Opposition”) and in 

support of Allscripts’ Motion for Summary Judgment, ECF No. 209, and filings made in 

connection therewith, ECF Nos. 213-14. Bais Yaakov invalidates a portion of the 2006 

regulations promulgated by the Federal Communications Commission (“FCC”) under the TCPA 

pertaining to fax advertisements. Bais Yaakov, 2017 WL 1192909, at *1, 4. The invalidated 

regulation bears directly on disputed issues in this case. As such, the opinion is helpful to the 

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Court in its decision-making process. See Jacobs, Jr. v. Guardian Life Ins. Co. of Am., 730 F. 

Supp. 2d 830, 844 (N.D. Ill. 2010) (granting motion for leave to file supplemental authority 

because “the Court finds the supplemental authority helpful with respect to this point of law”).

A. BAIS YAAKOV INVALIDATES THE 2006 FCC RULE REQUIRING ANY OPTOUT LANGUAGE ON SOLICITED FAX ADS

1. In its Amended/Corrected Motion for Class Certification (“Motion for Class 

Certification”), Plaintiff cites the 2006 FCC regulations and states “fax advertisements sent 

pursuant to an established business relationship (“EBR”) or with ‘prior express invitation or 

permission’ must contain [a] compliant opt-out notice.” ECF No. 204-1 at 2 (citing 47 C.F.R. § 

64.1200(a)(4)(iv)) (the “2006 FCC Rule”) (emphasis supplied). 

2. Based on the 2006 FCC Rule, Plaintiff argues that common issues predominate 

because one of the “main questions” in this case is “whether the faxes contain [an] opt-out notice 

required to assert EBR or ‘prior express invitation of permission.’” Id. at 17. See also id. at 18-

21. Plaintiff states the opt-out notice requirement obviates the need for the Court to analyze

individualized issues as to whether the faxes were sent with EBR or prior express invitation or 

permission. See id. at 18-19 (“[T]he Faxes either contain compliant opt-out notice or they do

not. ... Thus, Defendants cannot claim EBR or ‘prior express invitation or permission.’”). See 

also Pl.’s Rep. in. Supp. of Mot. Class Cert., ECF No. 238 at 1, 10-11 (“Without compliant optout notice, ‘it does not matter which recipients consented or had an established business 

relation[ship] with [the defendant].’”) (citation omitted). 

3. In Bais Yaakov, issued on March 31, 2017, the D.C. Circuit held that the 2006 

FCC Rule is “unlawful to the extent that it requires opt-out notices on solicited faxes” (i.e., faxes 

which recipients consented to receive). Ex. A, Bais Yaakov, 2017 WL 1192909, at *1, 4. As 

explained in the opinion, a “solicited” fax is a “term of art for faxes sent by businesses with the 

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invitation or permission of the recipient” (i.e., with consent). See id. at *1. 

4. Thus, it is no longer true that the FCC regulations require “all” fax advertisements 

contain a compliant opt-out notice. Fax advertisements sent with the consent of the recipients do 

not require an opt-out notice at all – and never could, according to the D.C. Circuit. See id. at *1, 

4.

B. BAIS YAAKOV RENDERS ALLSCRIPTS’ RETROACTIVE WAIVER 

UNNECESSARY, MOOTING THE ARGUMENTS ON THAT ISSUE

5. Moreover, as this Court is aware, the FCC granted to Allscripts (and others) a 

retroactive waiver of compliance with the 2006 FCC Rule stated above, thereby relieving

Allscripts from the need to have FCC-compliant opt-out notices on solicited faxes sent on or 

before April 30, 2015. See Allscripts’ SOF in Supp. of Mot. for Summ. J., ECF No. 214 at ¶ 66. 

6. In its Motion for Class Certification, Plaintiff challenges the efficacy of 

Allscripts’ retroactive waiver. See ECF No. 204-1 at 19-20. Similarly, in its Opposition to 

Defendants’ Motion for Summary Judgment, Plaintiff states “[e]ven if Allscripts could prove 

Plaintiff’s ‘prior express invitation or permission’ [i.e., consent], the regulations prescribed under 

the TCPA require compliant opt-out notice, and the Bureau waiver does not change that.” ECF

No. 249 at 16-20. See also Pl.’s Rule 56.1(b)(3) Resp. to Dfts.’ SOF, ECF No. 247 at ¶¶ 66-68. 

7. Plaintiff also appealed the issuance of such retroactive waivers to the D.C. 

Circuit, claiming they were an improper exercise of FCC authority. See Sandusky Wellness 

Centers, LLC, et al. v. FCC, et al., No. 14-1235 (D.C. Cir.). This appeal, along with other 

petitions challenging the FCC waivers, were consolidated with the Bais Yaakov case.

8. The D.C. Circuit resolved Plaintiff’s appeal adversely to Plaintiff in Bais Yaakov,

holding it was rendered “moot” by the Court’s invalidation of the 2006 FCC Rule on which the 

retroactive waivers were based. See Ex. A, Bais Yaakov, 2017 WL 1192909, at *4 n.2 (“A 

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different set of petitioners challenged the FCC’s waiver. In light of our decision that the FCC’s 

Solicited Fax Rule is unlawful, we dismiss the waiver petitions as moot.”). Because the

retroactive waiver was based on regulations the D.C. Circuit struck down as invalid ab initio,

Allscripts no longer requires a retroactive waiver from the FCC to avoid liability for faxes it sent 

with recipients’ consent. 

Dated: April 6, 2017 Respectfully submitted,

By: /s/ Livia M. Kiser

Livia M. Kiser

lkiser@sidley.com

Lawrence P. Fogel

lawrence.fogel@sidley.com

Andrew Chinsky

achinsky@sidley.com

SIDLEY AUSTIN LLP

One South Dearborn

Chicago, Illinois 60603

Telephone: 312-853-7000

Fax: 312-853-7036

Counsel for Allscripts Healthcare Solutions, Inc. 

and Allscripts Healthcare LLC 

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CERTIFICATE OF SERVICE

I, Andrew J. Chinsky, hereby certify that on April 6, 2017, I caused a copy of the 

foregoing to be electronically filed with the Clerk of the United States District Court for the 

Northern District of Illinois, using the CM/ECF system, which will send notification of such 

filing to all attorneys of record. 

/s/ Andrew J. Chinsky

 Andrew J. Chinsky

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