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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

PHYSICIANS HEALTHSOURCE, INC., an Ohio 

corporation, individually and as the representative of 

a class of similarly-situated persons,

Plaintiff,

v.

A-S MEDICATION SOLUTIONS LLC, JAMES 

BARTA, WALTER HOFF AND JOHN DOES 1-10,

Defendants.

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Case No. 12-cv-5105

Hon. Joan B. Gottschall

PLAINTIFF’S REPLY MEMORANDUM OF LAW 

IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Plaintiff, Physicians Healthsource, Inc. (“Plaintiff” or “PHI”), submits this Reply 

Memorandum of Law in Support of its Motion for Class Certification.

Introduction

Defendants’ Memorandum in Opposition to Plaintiff’s Motion for Class Certification 

(Doc. 162-1) does not challenge Plaintiff’s showing as to Rule 23(a) requirements of numerosity, 

commonality, typicality, and the adequacy of both the class representative and class counsel.

Instead, Defendants claim the Rule 23(b)(3) requirements of predominance and superiority have 

not been met. First, Defendants argue there are individual issues as to whether each putative class 

member provided statutory “prior express invitation or permission” to be sent the single fax 

advertisement at issue in this case (the “Fax”). Defendants admit that they did not obtain prior 

express permission from any putative class member to send the Fax. Instead, Defendants claim AS is a “mere continuation” of non-party Allscripts, and any permission obtained by Allscripts from 

its customers to send fax advertisements was somehow transferred to A-S upon its purchase of 

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Allscripts’ medical dispensing business on March 2, 2009. This argument fails factually and as a 

matter of law, see infra, and even if it was colorable, would be decided on a class-wide basis, and 

thus does not create individualized permission issues.

Second, Defendants argue the retroactive waiver obtained from the Consumer & 

Governmental Affairs Bureau of the Federal Communications Commission operates to excuse 

Defendants of their violation of the TCPA and its implementing regulations. This argument also 

fails as a matter of law. As argued in Plaintiff’s Opening Brief, the retroactive waiver does not 

apply in this private right of action in this Article III Court. (Doc. 147-1, Page ID 1035-37).

Moreover, as with Defendants’ “permission” argument, the “waiver” question applies equally to 

all putative class members and can thus be decided on a class-wide basis.

Argument

I. Defendants’ attempt to rely on “permission” to send fax advertisements purportedly 

obtained by non-party Allscripts fails as a matter of law. 

It is undisputed that Defendants, the “senders” of the Fax, failed to take any steps to obtain 

prior express permission from any putative class members before transmitting the Fax. As noted 

in our Opening Brief, A-S acquired Plaintiff’s fax number (and all fax numbers to which the Fax 

was transmitted) by logging into Allscripts’ Salesforce database, taking the Allscripts’ fax 

numbers, and then sending the Fax to those fax numbers from A-S. (Doc. 147-1, Page ID 1033).

Walter Hoff, CEO for A-S, testified that A-S never contacted the target list generated from the 

Salesforce data base because “we didn’t need to” in that A-S was a “mere continuation” of 

Allscripts, and Allscripts “had policies to obtain consent.” (Id. at Page ID 1034). Defendants then 

argue the “consent” purportedly obtained by Allscripts may be “broad enough” to apply to faxes 

sent by A-S marketing the same types of products and services previously offered by Allscripts.

(Defs.’ Br. at 3, 24). Building on this faulty predicate, Defendants claim that “[b]ecause consent 

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cannot be resolved through common or class-wide proof, Plaintiff cannot satisfy the class 

certification prerequisite that common questions of fact and law predominate over individual 

ones.” (Defs.’ Br. at 4). In particular, Defendants argue a determination will need to be made as to 

(1) the facts and circumstances surrounding consent, (2) the intent of each putative class member 

when providing consent, (3) the context in which each putative class member provided consent, 

and (4) the putative class members’ understanding of A-S’s purchase of the Allscripts’ medication 

dispensing business. (Defs.’ Br. at 22). Defendants’ argument fails.

First, and not surprisingly, Defendants do not cite a single junk-fax case wherein prior 

express permission to send a fax advertisement was transferred or assigned from one entity to 

another. The FCC regulations governing fax advertisements are exacting – the sender1 must obtain 

prior express permission to send a fax advertisement from the recipient. In In re Rules &

Regulations Implementing the Telephone Consumer Protection Act of 1991; Junk Fax Prevention 

Act of 2005, 21 FCC Rcd. 3787, 3811-12, ¶¶ 45, 46 (May 3, 2006) (“2006 Order”) (emphasis 

added), the FCC stated:

In the absence of an EBR, the sender must obtain the prior express invitation or 

permission from the consumer before sending the facsimile advertisement. . . 

Whether given orally or in writing, prior express invitation or permission must be 

express, must be given prior to the sending of any facsimile advertisements, and 

must include the facsimile number to which such advertisement may be sent . . .

We are concerned that permission not provided in writing may result in some 

senders erroneously claiming they had the recipient’s permission to send facsimile 

advertisements. Commenters that discussed this issue agree that a sender should 

have the obligation to demonstrate that it complied with the rules, including that it

had the recipient’s prior express invitation or permission. Senders who chose to 

obtain permission orally are expected to take reasonable steps to ensure that such 

permission can be verified. In the event a complaint is filed, the burden of proof 

 

1 The regulations define “sender” as “the person or entity on whose behalf a facsimile unsolicited 

advertisement is sent or whose goods or services are advertised or promoted in the unsolicited 

advertisement.” 47 C.F.R. § 64.1200(f)(10).

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rests on the sender to demonstrate that permission was given. We strongly suggests 

that senders take steps to promptly document that they received such permission.

Here, as Mr. Hoff admits, Defendants did not make any attempt to obtain prior express 

permission from the target list before sending the Fax. (Doc. 147-1, at Page ID 1034). That 

undisputed fact disposes as a matter of law of any claimed permission by Defendants. As the 2006 

Order makes clear, it is the obligation of the sender, i.e., Defendants, to obtain prior express 

permission from the consumer (the putative class members), and they have unequivocally admitted 

they did not do so. At best, Defendants are merely claiming “implied” permission to send fax 

advertisements derived from Allscripts’ purported permission. See Physicians Healthsource, Inc. 

v. Stryker Sales Corp., 65 F. Supp. 3d 482, 484 (W.D. Mich. 2014) (holding permission was at 

best “indirect,” not express, where physician gave fax number to AMA, which then licensed 

database to third parties). Moreover, this is a class-wide issue that applies in the same fashion to 

the entire class – no putative class member was treated differently – none provided prior express 

permission to Defendants to send the Fax. Accordingly, the issue of permission does not require 

individual analysis and thus cannot defeat class certification; either prior express permission can 

be transferred, or it cannot.

Second, the FCC regulations make clear in the context of an “established business 

relationship” (EBR)—a lower standard than “prior express invitation or permission”—that an EBR 

cannot be transferred between “affiliates.” The 2006 Order provides that the “EBR exemption 

applies only to the business or residential subscriber has had a “voluntary two-way 

communication,” and that it “would not extend to affiliates of that entity, including a fax 

broadcaster which is retained to send facsimile ads on behalf of that entity.” 2006 Order at 3798-

99, ¶ 20. The FCC reasoned that “to permit companies to transfer EBRs to affiliates would place 

an enormous burden on consumers to prevent unwanted faxes from companies with which they 

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have no direct business relationship.” Id. If an EBR cannot be transferred to “affiliates,” neither 

can prior express permission. Moreover, as argued above, the regulatory requirement of the sender 

obtaining prior express permission from the recipient forecloses the derivative use of permission 

advocated by Defendants.

Cognizant of their “prior express permission” predicament, namely, they don’t have any, 

Defendants cite to an FCC decision in a TCPA case involving voice telephone calls and a series 

of district court decisions in TCPA “call cases” and argue that the scope of the consumer’s 

“consent” depends on its context and the purpose for which it was given. This argument fails.

Initially, it must be noted that the TCPA does not recognize “consent” to facsimile 

transmissions. Although the TCPA provisions governing voice telephone calls allow a defense of 

“prior express consent,”2the fax-advertising laws recognize only EBR and “prior express 

invitation or permission.” 47 C.F.R. § 64.1200(a)(4). As the FCC explained as amicus in Palm 

Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., 781 F.3d 1245, 1255 (11th Cir. 2015), and 

as the Eleventh Circuit accepted, “[s]eparate subsections of the statute address voice telephone 

calls and facsimile advertisements” and “FCC rules implementing those provisions treat voice calls 

and faxes differently.” (See Palm Beach Golf Center-Boca, Inc. v. Sarris, FCC Letter Brief, 2014 

WL 3962595, at *2 (11th Cir. July 17, 2014) (attached as Exhibit 12)).

Defendants’ citation to the FCC’s order in In re Groupme, Inc./skype Commc’ns S.A.R.I. 

Petition for Declaratory Ruling Rules & Regulations Implementing the Tel. Consumer Prot. Act 

of 1991 (“Groupme”), 29 FCC Rcd. 3442, 3446 (2014), for the proposition that “consent to be 

called at a number in conjunction with a transaction extends to a wide range of calls ‘regarding’ 

 

2

47 U.S.C. § 227(b)(1)(A) (prohibiting telephone calls “using any automatic telephone dialing system or 

an artificial or prerecorded voice” without the called party’s “prior express consent”).

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that transaction, even in at least some cases where the calls were made by a third party,” only 

serves to underscore the futility of their attempt to apply call cases to the instant case. (Defs.’ Br. 

at 4). Groupme, a text messaging service, requires a user who wishes to create a group to represent 

that each individual added to the group has consented to be added and to receive text messages.

Id. at 3443. Once registered, the group creator provides Groupme with the wireless telephone 

numbers of the group members. Id. Groupme then sends text messages regarding use of the service. 

Id. Groupme asked the FCC to clarify that “in the case of non-telemarketing or informational text 

messages prior express consent should be allowed via an intermediary because requiring a specific 

type of express consent in unnecessarily burdensome for purely informational calls and texts, 

which is inconsistent with the TCPA’s goals.” Id. at 3443-44 (emphasis added).

The FCC agreed, stating “text-based social networks may send administrative texts 

confirming consumers’ interest in joining such groups without violating the TCPA because, when 

consumers give express consent to participate in the group, they are the types of expected and 

desired communications TCPA was not designed to prohibit, even when the consent is conveyed 

to the text-based social network by an intermediary.” Id. at 3442. The FCC further “clarified” that 

“where the consumer has agreed to participate in a Groupme group, agreed to receive associated 

calls and texts, and provided his or her wireless telephone number to the group organizer for that 

purpose, the TCPA’s prior express consent requirement is satisfied with respect to both Groupme 

and the group members regarding that particular group, but only that particular group.” Id. at 3446.

Finally, the FCC stated that, although the intermediary may convey consent that has been provided 

by the consumer, the intermediary “cannot provide consent on behalf of the consumer.” Id. at 3447.

Thus, by its own terms, Groupme applies to “calls,” not fax advertisements. Moreover, 

Groupme did not involve advertisements but instead concerned “administrative texts.” It is unclear 

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whether Defendants consider Allscripts an “intermediary,” although it clearly is not. What is clear 

however, is that even in the inapplicable area of TCPA call cases, Allscripts could not provide 

“prior express consent” on behalf of the putative class for A-S to call them on the telephone, let 

alone provide “prior express invitation or permission” for A-S to send fax advertisements. The 

intermediary providing “consent” in call cases is the antithesis of the “sender” being required to 

obtain prior express permission from the recipient to send fax advertisements.

Defendants’ reliance Kolinek v. Walgreen’s Co., 2014 WL 3056813, at *4 (N.D. Ill. July 

7, 2004), meets a similar fate. In Kolinek, the plaintiff alleged he gave Walgreens his cellular phone 

number in response to a request from a pharmacist who said it was needed for potential identity 

verification purposes. Id. at *4. The court held that this did not amount to consent to automated 

calls reminding him to fill his prescription -- “the FCC made it clear [in its GroupMe ruling] that 

turning over one's wireless number for the purpose of joining one particular private messaging 

group did not amount to consent for communications relating to something other than that 

particular group.” Id. at *3-*4. Further, the court held that “to the extent the FCC's orders establish 

a rule, it is that the scope of a consumer's consent depends on its context and the purpose for which 

it is given. Consent for one purpose does not equate to consent for all purposes.” Id. at *4.

Here, in this junk fax case, it is not a question of the “context” of the consumer’s “consent”; 

rather, the “sender” Defendants have either obtained prior express permission from the putative 

class members to send the Fax advertisement, or they have not. This question has already been 

answered – they have not. Defendants’ claim that class members “who consented to receive fax 

advertisements regarding products and services offered by Allscripts MSG may have intended or 

expected that the consent they provided would include faxes sent by the business successor of 

MSG,” see Defs.’ Br. at 21, is a far cry from the requisite prior express permission. Indeed, the 

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text of Defendants’ brief further underscores the inapplicability of the call cases upon which they 

rely. Defendants quote from Olney v. Job.com, Inc., 2014 WL 1747674, at *6 (E.D. Cal. May 1, 

2014) (“an individual may indirectly provide a third-party with express consent to be called under 

the TCPA”), and from Baird v. Sabre, Inc., 995 F. Supp.2d 1100, 1107 (N.D. Ill. 2014), aff’d, No. 

14-55293, 2016 WL 424778 (9th Cir. Feb. 3, 2016) (plaintiff who voluntarily provided cell phone 

number to airline “consented to be contacted on her cellphone about flight-related matters,” and 

text message sent by airline’s third-party vendor offering to provide flight information “fell within 

the scope of her prior express consent.”) (Defs.’ Br. at 3, 4). These cases are inapplicable to the 

issue of whether Defendants obtained prior express permission to send the putative class a fax 

advertisement. There is simply no evidence in the instant case (nor could there be based on the 

regulations) that Allscripts had the authority to provide prior express permission on behalf of its 

customers to Defendants so that Defendants could then send the Fax to Plaintiff and the putative 

class – “the intermediary cannot provide consent on behalf of the consumer.” Groupme, 29 F.C.C 

Rcd. at 3447.3

In sum, Defendants’ contention that prior express permission cannot be resolved through 

common or class-wide proof is simply wrong. (Defs.’ Br. at 4). All of the prior express permission 

erroneously claimed by Defendants is from a single source, Allscripts. Either Defendants can 

acquire Allscripts’ purported prior express permission to send fax advertisements to a list of 

 

3 Even in call cases, “express consent” cannot be transferred. In Satterfield v. Simon & Schuster, 569 F.3d 

946, 955 (9th Cir. 2009), the plaintiff consented to receiving promotional materials from a company 

(Nextones) and its affiliates and brands. The plaintiff’s cellphone number was subsequently obtained by an 

unaffiliated entity, Simon & Schuster, which sent a promotional text message about a book having no 

relation to Nextones. Id. at 949. The Ninth Circuit held that the plaintiff’s “consent to receive promotional 

material by Nextones and its affiliates and brands cannot be read as consenting to the receipt of Simon & 

Schuster’s promotional material.” Id.

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customers taken from Allscripts Salesforce database, or they cannot. Prior express permission can 

either be transferred or assigned, or it cannot. While Plaintiff submits the answers to these question 

is a resounding no, the fact of the matter is that these questions may be decided by the Court as to 

the entire putative class. Thus, there is no need for individual inquiries.

Other arguments advanced by Defendants are addressed in seriatim. First, Defendants 

claim that undisputed evidence “confirms that Allscripts obtained consent prior to sending faxes 

promoting Allscripts’ goods and services.” (Defs.’ Br. at 20). While Plaintiff disagrees with this 

assertion, whether Allscripts had prior express permission to send fax advertisements to the fax

numbers on the Salesforce database is irrelevant to whether Defendants had such permission. 

Second, Defendants’ constant refrain that A-S is the “mere continuation” of Allscripts’

MSG business is starkly at odds with the testimony elicited from Allscripts’ Rule 30(b)(6) witness,

Brian Moffett, who testified that Allscripts (i) had no knowledge that A-S was faxing, (ii) never 

called any companies to seek permission for A-S to send fax advertisements, (iii) did not obtain 

fax numbers on behalf of A-S in order for A-S to send fax advertisements, and (iv) had “no idea” 

as to what A-S did regarding the February 2010 faxes because “[i]t’s a different company. I would 

have no idea what A-S did.” (Id., Page ID 1057-59, at 24-26, 30-31). Moffett testified that 

Allscripts “never gave them [A-S] our fax numbers,” that Allscripts did not provide customer data 

to A-S following the Allscripts’ divesting of the MSG, and that the fax numbers that were used to 

send the faxes in February 2010 did not come from Allscripts – “they [A-S] had two log-in 

accounts to our Salesforce data base that we know of. The only – the only possible theory here is 

that they took it.” (Id., Page ID 1058-59, at 29, 31). Allscripts subsequently cut off A-S’s access 

to the Salesforce data base. (Id., Page ID 1059, at 32). Moffett testified that A-S took the 

information from the Salesforce database [that contained all of the fax numbers to which the Fax 

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was transmitted by A-S] “without the authorization of Allscripts,” and that “we have no records to 

show we ever gave them the data, so we have no idea how they got it.” (Id., Page ID 1060, at 33).

4

Under these circumstances, Defendants’ claim that Allscripts transferred its claimed prior 

express permission to send fax advertisements to the fax numbers on the Salesforce database taken 

from Allscripts, and its claim to be a “mere continuation” of Allscripts, is unsupportable.

Third, A-S’s purported practice of sending fax advertisements only to its customers is 

irrelevant to the instant case as it is undisputed that Defendants used the Allscripts Salesforce data

base to obtain the targets of its fax advertising and that it did not attempt to obtain prior express 

permission from a single person or entity on that list. (Defs.’ Br. at 12).

Fourth, Defendants’ claim that Plaintiff provided prior express permission to Allscripts to 

send “information” via fax is irrelevant because permission to send “information” is not permission 

to send fax advertisements, and because Defendants obtained Plaintiff’s fax number from the 

Allscripts Salesforce data base. Moreover, Magistrate Judge Cole rejected the very evidence relied 

upon by Defendants to support this claim in Physicians Healthsource, Inc. v. Allscripts Health 

Sols., Inc., 2015 WL 6318272, at *5 (N.D. Ill. Oct. 21, 2015).

Fifth, while Defendants assert it is undisputed that Allscripts had prior express permission 

to send fax advertisements, the fact of the matter is that Allscripts has been sued on two separate 

occasions for violating the TCPA by sending unsolicited fax advertisements. The first case, 

 

4 Moffett also testified that Allscripts gave A-S a log-in ID and passwords because Glen Tullman of 

Allscripts wanted to see the MSG business sold to A-S “prosper” after it was sold, so “I think he was trying 

to help them out to give them some leads, you know, for them to be able to go into our database, find out 

some of our customers at ePrescribe, et cetera, and help them, you know, succeed. (Moffett Dep., 147-4, 

Page ID 1060, at 34-35). However, A-S has not identified any purported “authorization” from Allscripts to 

use Allscripts’ claimed “prior express permission” to send fax advertisements to the customers listed in the 

Salesforce database. Moreover, as argued herein, such “authorization” is not Allscripts’ to give – prior 

express permission must be obtained by the sender from the recipient.

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Geismann v. Allscripts Healthcare Solutions, Inc., No. 09-cv-5114 (N.D. Ill.), was eventually 

settled. A class settlement was approved February 2, 2012. (See Doc. 164-7, Geismann Final 

Approval Order). The settlement was strictly limited to faxes sent “between February 11, 2008 

and April 26, 2008” because that was the only time period for which defendants in Geismann had 

produced evidence of their faxing activity. (Id. ¶ 5(a)). After final approval in Geismann, 

Plaintiff’s counsel discovered Allscripts Defendants had sent at least 36 fax advertisements to 

Plaintiff, from July 9, 2008, to December 5, 2011, which were not produced during the Geismann

litigation. (Doc. 1, ¶ 11). This lead to the second suit against Allscripts, which is currently pending 

before Magistrate Judge Cole, cited above.

Sixth, Defendants impermissibly rely on undisclosed witnesses. In their response, 

Defendants submitted declarations obtained from 5 putative class members -- Lindsey Williams, 

Doc. 162-1, Page ID 1863, Jeannine Oliver, id. at Page ID 1866, Victoria Smith, id. at Page ID 

2415, Cathy Bolt Jones, id. at Page ID 2419, and Debra Lucas, id. at Page ID 2422. (Defs.’ Br. at 

14-16). These declarants discuss their “consent” to receive Allscripts’ “product information,” and

that they considered A-S a “mere continuation” of Allscripts. (Id.) These declarants admittedly did 

not provide prior express permission to Defendants to send them the Fax advertisement at issue. 

Moreover, these witnesses were disclosed for the first time in Defendants’ response to Plaintiff’s 

motion for class certification. Discovery in this case was reported completed on December 10, 

2015. (Doc. 145). These five declarants were never disclosed. Accordingly, their declarations 

should be barred pursuant to Fed. R. Civ. P. 26(a)(1), 26(e), and 37(c)(1).

II. The effect of A-S’s “retroactive waiver” fails as matter of law in this Court and is a 

class-wide question that should be decided on the merits after class certification.

Defendants claim that the retroactive waiver issued by the FCC’s Consumer & 

Governmental Affairs Bureau on August 28, 2015, see In re Rules & Regulations Implementing 

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the Telephone Consumer Protection Act of 1991, 30 F.C.C. Rcd. 8598, 8602 (2015) (“Bureau 

order”), should apply to the Fax at issue in this case. (Defs.’ Br. at 25-29). Defendants are incorrect.

Contrary to Defendants’ argument, the Court need not decide the effect of the “waiver” 

now. As the district court held in Physicians Healthsource, Inc. v. Doctor Diabetic Supply, LLC, 

2014 WL 7366255, at *5 (S.D. Fla. Dec. 24, 2014), at the class-certification stage, an 

administrative waiver like A-S’s merely “create[s] another class-wide question: whether the FCC 

can grant a retroactive waiver that would apply in civil litigation between private parties.” That 

question is a sub-issue under the main common question of whether Defendants’ failure to use 

compliant opt-out notice precludes it from asserting “prior express invitation or permission.” That 

question should be decided after class certification. If the answer requires a reexamination of class 

certification, Rule 23(c)(1)(C) expressly authorizes a district court to “alter or amend” an order 

granting or denying class certification at any time prior to final judgment. 

If the Court decides the effect of A-S’s administrative “waiver” at this stage, it should hold 

it cannot have the effect of precluding this Court from finding a violation of 47 C.F.R. 

§ 64.1200(a)(4)(iv). The “waiver” was issued by the FCC’s Consumer & Governmental Affairs 

Bureau on August 28, 2015, pursuant to an order issued October 30, 2014 by the full FCC—

meaning the five Commissioners appointed by the president—which granted waivers to two dozen 

petitioners and invited “similarly situated” persons to seek identical waivers. The October 30, 2014 

Order is currently on appeal to the D.C. Circuit. Undersigned counsel represent several parties in 

that proceeding, who appealed on the basis that the October 30, 2014 Order appears to have been 

intended to immunize particular parties from liability in ongoing private litigation, which would 

be a violation of the separation of powers. (See Pet’rs Joint Opening Br. at 12–15, attached as 

Exhibit 13).

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In its response brief, the FCC argued that the Commission merely “assumed” that the 

“result” of the waivers would be that “those lawsuits [against the petitioners] presumably could 

not lead to damages.” (Final Brief for Respondents FCC & USA at 38, attached as Exhibit 14). 

The FCC argued the Commission “reasonably assumed” that would be the result, but it did not 

actually decide what effect the waivers would have in Article III courts. (Id.) Thus, this Court 

should decide the effect of the Bureau waiver de novo, according no deference to the FCC’s 

“assumption.” For the reasons below, A-S’s waiver has no effect in this private cause of action. 

The Supreme Court has held that the TCPA, 47 U.S.C. § 227(b)(3), vests district courts 

with subject-matter jurisdiction to find a “violation” of the Act or the “regulations prescribed 

under” the Act. Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 752 (2012). The “regulations 

prescribed under” the TCPA require compliant opt-out notice to assert EBR or “prior express 

invitation or permission.” 47 C.F.R. § 64.1200(a)(4)(ii) & (iv). An administrative “waiver” does 

not change that.

In Physicians Healthsource, Inc. v. Stryker Sales Corp., 65 F. Supp. 3d 482, 498 (W.D. 

Mich. 2015), the district court addressed the effect of an identical waiver at summary judgment, 

after certifying the class, and held the effect is limited to FCC enforcement proceedings5because 

“[i]t would be a fundamental violation of the separation of powers for the administrative agency 

to ‘waive’ retroactively the statutory or rule requirements for a particular party in a case or 

controversy presently proceeding in an Article III court.” Id. The court held nothing in the waiver 

“invalidates the regulation itself,” which “remains in effect just as it was originally promulgated” 

for finding a violation of the “regulations prescribed under” the TCPA. Id. 

 

5 The TCPA may be enforced by private parties, 47 U.S.C. § 227(b)(3), state attorneys general, id. § 227(g), 

and the FCC, id. § 503(b).

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Stryker relied on Turza, 728 F.3d at 688, where the Seventh Circuit affirmed class 

certification and summary judgment for an opt-out-notice class and refused to give any effect to a 

portion of a 2006 FCC ruling stating that faxes containing only “incidental advertising” are not 

actionable, holding the regulation itself says if a fax contains “any” advertising, then it is an 

advertisement. The Seventh Circuit held the portion of the 2006 ruling regarding “incidental 

advertising” was merely “a declaration of the [FCC’s] enforcement plans” with no effect in private 

litigation, given that the TCPA “authorizes private litigation” in the first place so “recipients [of 

faxes] need not depend on the FCC.” Id. This Court should apply Turza, as Stryker did, to hold 

that the opt-out regulation “remains in effect just as it was originally promulgated,” and A-S’s 

waiver is at best a “declaration of the [FCC’s] enforcement plans” (i.e., its plans not to bring an 

enforcement action against A-S). See also Fauley v. Heska Corp., 112 F. Supp. 3d 775 (N.D. Ill. 

2015) (Alonso, J.) (holding “it is not clear what impact, if any, a waiver would have on this 

litigation”). This issue concerns the Court’s subject-matter jurisdiction, and it is “the Judiciary, not 

any executive agency,” that determines “the scope” of “‘judicial power vested by’ statutes 

establishing private rights of action.” City of Arlington v. FCC, 133 S. Ct. 1863, 1871 n.3 (2013); 

see also Nat. Res. Def. Council v. EPA, 749 F.3d 1055, 1062 (D.C. Cir. 2014) (holding EPA lacked 

authority to create affirmative defense to its own regulations for use in private “citizen suits” under 

City of Arlington). 

Finally, Defendants rely on Simon v. Healthways, Inc., 2015 WL 10015953 (C.D. Cal. Dec. 

17, 2015), and Bais Yaakov of Spring Valley v. Graduation Source, LLC, 2016 WL 1271693 

(S.D.N.Y. Mar. 29, 2016), for the proposition that the administrative waiver obtained by A-S bars 

Plaintiff’s claim here. First, both cases expressly recognize that in order for the waiver to apply, 

Defendants must demonstrate prior express permission. Simon, 2015 WL 10015953, at *6; Bais 

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Yaakov, 2016 WL 1271693, at *4; see also 2006 Order, 21 FCC Rcd. at 3812 ¶ 46 (“the burden of 

proof rests on the sender to demonstrate that permission was given”); Paldo Sign & Display Co. 

v. Wagener Equities, Inc., 67 F. Supp. 3d 874, 884 (N.D. Ill. 2014) (same). As demonstrate above, 

Defendants’ claimed permission fails as a matter of law.

Second, Plaintiff respectfully submits that these cases were incorrectly decided, also for 

the reasons cited above, namely, that it is this Court that determines “the scope” of “‘judicial power 

vested by’ statutes establishing private rights of action.” City of Arlington, 133 S. Ct. at 1871 n.3; 

Nat. Res. Def. Council, 749 F.3d at 1062. Contrary to the FCC’s claim, cited in both Simon, at *7,

and Bais Yaakov, at *4, it is not (by granting retroactive waivers) “interpreting a statute,” it is 

“assuming” that it has the power to divest this Court of subject matter jurisdiction expressly 

provided by Congress in creating a private right of action in 47 U.S.C. § 227(b)(3) for violations 

of “the regulations prescribed under this subsection,” which gives the FCC no authority to impair 

that right. Indeed, the Court in Bais Yaakov, at *5, mistakenly concludes that the waiver does not 

retroactively release Defendants from statutory liability, but only from the regulation the FCC is 

interpreting. The TCPA statute just quoted expressly provides for statutory liability for violations 

of the regulations.

In sum, as set forth above, the FCC does not have the authority to excuse Defendants’ 

violation of the TCPA in this Court. Moreover, as there can be no showing of prior express 

permission, the waiver argument is a non-starter. 

CONCLUSION

Defendants do not dispute that the requirements of Rule 23(a) are satisfied, and its 

arguments against Rule 23(b)(3) predominance and superiority fail. PHI asks the Court to certify 

the class, appoint PHI as class representative, and appoint PHI’s counsel as class counsel. 

Case: 1:12-cv-05105 Document #: 175 Filed: 06/03/16 Page 15 of 16 PageID #:3535
16

Respectfully submitted,

PHYSICIANS HEALTHSOURCE, INC., 

individually and as the representative of a class of 

similarly-situated persons

By: s/Ryan M. Kelly

One of Plaintiff’s Attorneys

Brian J. Wanca

Ryan M. Kelly

ANDERSON + WANCA

3701 Algonquin Road, Suite 500

Rolling Meadows, IL 60008

Telephone: 847/368-1500

CERTIFICATE OF SERVICE

I hereby certify that on June 3, 2016, I electronically filed the foregoing with the Clerk of 

the Court using the CM/ECF system which will send notification of such filing to all attorneys of 

record.

 s/Ryan M. Kelly

 Ryan M. Kelly

Case: 1:12-cv-05105 Document #: 175 Filed: 06/03/16 Page 16 of 16 PageID #:3536