UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

PHYSICIANS HELATHSOURCE, INC., an )

Ohio corporation, individually and as the )

representative of a class of similarly-situated )

persons, )

) No. 12-cv-5105

Plaintiff, )

) Judge Joan B. Gottschall

v. )

) Magistrate Judge Sheila M. Finnegan

A-S MEDICATION SOLUTIONS LLC, )

JAMES BARTA, WALTER HOFF )

and JOHN DOES 1-10, )

)

Defendants. )

REPORT OF PARTIES’ PLANNING CONFERENCE

1. Conference and Names of Attorneys. 

Pursuant to Fed.R.Civ.P. 26(f), a conference was held on April 9, 2013. Participants to 

the conference were:

(a) Brian Wanca for Plaintiff Physicians Healthsource, Inc. (“Physicians 

Healthsource” or “Plaintiff”); and

(b) Cory D. Anderson for Defendants A-S Medication Solutions, LLC, James Barta 

and Walter Hoff (“A-S Medication” or “Defendants”).

2. Description of Claims.

(a) Plaintiff’s description of the nature of the claims asserted in the complaint, 

including the basis of federal jurisdiction, are as follows:

Plaintiff asserts claims for the Defendants’ transmission of advertisements to Plaintiff and 

a putative class without prior express permission or invitation. Plaintiff brings its action 

for violations of the Telephone Consumer Protection Act, common conversion, and for 

violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. Federal 

jurisdiction exists under Federal Question Jurisdiction.

(b) Defendants’ description of the nature of the defenses are as follows:

Defendants deny Plaintiff’s substantive allegations, in their entirety. Among other 

defenses available to them, Defendants state that Plaintiff’s claims are barred, in whole, 

or in part by § 227(b)(1)(C) et seq. Defendants further state that Plaintiff lacks standing 

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to bring this suit under Article III of the United States Constitution because Plaintiff has 

not alleged receipt of unsolicited facsimiles. Third, Defendants state that because 

Plaintiff lacks standing to bring this suit under Article III of the United States 

Constitution, it has failed to establish the existence of an actual controversy to be decided 

by this Court. Accordingly, this Court lacks subject-matter jurisdiction over the claims 

and controversies alleged by Plaintiff. Finally, Defendants dispute class certification 

because Plaintiff cannot meet its burden pursuant to the requirements of Rule 23.

3. Prospects of Settlement.

(a) Status of settlement discussions are as follows: No settlement discussions have 

taken place. Until sufficient class discovery has been provided, settlement 

conferences would be premature.

(b) The Parties believe discovery defining the parameters and propriety of the 

proposed potential class is needed to meaningfully assess settlement.

4. Consideration of Issues Concerning Electronically Stored Information (“ESI”).

The Parties report as follows:

(a) The Parties have discussed the potential existence of ESI in the case. The Parties

anticipate that discovery will encompass at least some electronically stored 

information. To the extent that discovery includes electronically stored 

information, production of such information must be produced in native electronic 

format if possible.

5. Pre-Discovery Disclosures and Pleadings:

(a) The Parties believe Rule 26(a)(1) disclosure should apply.

(b) Information required by Fed. R. Civ. P. 26(a)(1) has been exchanged. 

(c) Defendants Rule 12(b)(1) motion to dismiss was denied by this Court on March 

28, 2013. Plaintiff filed its amended complaint on April 2, 2013. Defendants 

request up to and including May 10, 2013 in which to file their responsive 

pleading to Plaintiff’s amended complaint. Plaintiff opposes any additional 

extension to answer the amended complaint. 

6. Discovery Plan. 

The Parties jointly propose to the Court the following discovery plan: 

(a) Discovery will be needed on the following subjects:

(i) Rule 23 issues including numerosity, commonality, typicality and 

superiority.

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(ii) Whether Plaintiff had an “established business relationship” with 

Defendants when Plaintiff received the fax.

(iii) Whether Plaintiff communicated its facsimile number to Defendants or 

agreed to make its facsimile number available for distribution.

(iv) Whether any of Defendants’ fax advertisements had opt out language 

compliant with 64 C.F.R. 1200 to permit Defendants to claim consent or 

EBR as a defense.

(v) When and how Defendants obtained Plaintiff’s facsimile number and 

those of the putative class members.

(vi) The identity and location of putative class members, whether they 

consented to receive facsimiles, had relationships with Defendants, and 

the circumstances under which they may have received facsimiles.

(vii) The adequacy and typicality of Plaintiff as putative class representative, as 

well as the adequacy of putative class counsel.

(viii) Discovery relative to Defendants’ affirmative defenses.

(b) All Rule 23 fact discovery to be completed by October 25, 2013.

(c) The Parties propose the following variations on the limits imposed by Rules 30 

and 33 on deposition and interrogatory discovery:

(i) The Parties are limited to 10 depositions each for the purposes of 

completing Rule 23 fact discovery, except by agreement or upon showing 

of good cause.

(ii) The Parties shall be entitled to serve up to 30 interrogatories each for the 

purposes of completing Rule 23 fact discovery, except by agreement or 

upon showing of good cause.

(d) Reports from retained experts under Rule 26(a)(2) due:

(i) From Plaintiff by November 29, 2013.

(ii) From Defendant by December 31, 2013.

(iii) Plaintiff’s Rebuttal Report by February 14, 2014.

(e) All retained expert depositions to be completed by February 28, 2014.

(f) Plaintiff to file its Rule 23 motion and brief on or before March 28, 2014.

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7. Pretrial/Trial Plan.

The Parties request an additional scheduling conference with the Court for merits 

discovery and summary judgment scheduling after the Court rules on Plaintiff’s Rule 23 

Motion.

8. Magistrate Judge Consent. 

Plaintiff does not consent to referral to a United States Magistrate Judge.

Dated: April 22, 2013

Respectfully submitted,

PHYSICIANS HEALTHSOURCE, INC.

s/Brian J. Wanca

One of Its Attorneys

Brian Wanca

Anderson + Wanca

3701 Algonquin Road, Suite 760

Rolling Meadows, IL 60008

(847) 368-1500

A-S MEDICATION SOLUTIONS, 

JAMES BARTA and WALER HOFF

s/Cory D. Anderson 

One of Their Attorneys

John J. Rock

Cory D. Anderson

Rock Fusco & Connelly, LLC

321 N. Clark Street, Suite 2200

Chicago, IL 60654

(312) 494-1000

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