UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

PHYSICIANS HEALTHSOURCE, INC., 

individually and as the representative of a class of 

similarly-situated persons,

Plaintiff,

v.

A-S MEDICATION SOLUTIONS LLC, WALTER 

HOFF and JOHN DOES 1-10,

Defendants.

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Case No.: 12-cv-5105

Hon. Matthew F. Kennelly

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO SET BRIEFING 

SCHEDULE AND EVIDENTIARY HEARING ON DAMAGES ISSUES

Plaintiff, Physicians Healthsource, Inc., as representative of the certified Class, by 

and through its attorneys, hereby responds as follows to the Motion to Set Briefing Schedule and 

Evidentiary Hearing on Damages Issues filed on October 12, 2018, by Defendants A-S Medication 

Solutions LLC (“A-S”) and Walter Hoff (“Hoff”) (collectively, “Defendants”). (Doc. 304). 

As argued below, Defendants’ proposal that each class member be required to file a “claim 

form” to receive the statutory damages to which they are entitled flatly contradicts controlling 

Seventh Circuit authority governing the procedure for distributing damages in a TCPA fax case.

See Holtzman v. Turza, 728 F.3d 682, 683 (7th Cir. 2013) (“Turza I”) (affirming summary 

judgment for certified TCPA class at $500 per fax); Holtzman v. Turza, 828 F.3d 606 (7th Cir. 

2016) (“Turza II”) (holding class members would automatically be sent a check for $500—less 

attorney fees, expenses, and an incentive award— unless “a given recipient cannot be located, or 

spurns the money”); Holtzman v. Turza, 701 Fed. App’x 506, 507 (7th Cir. 2017) (“Turza III”)

(affirming order requiring notice to class members using defendant’s target list “asking each 

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whether he or she wants to claim the recovery (with nonresponse implying consent) and to update 

any details necessary to ensure that checks reach the correct addresses”). 

As in Turza, Defendants in this case concede that they have produced “the fax server that 

identifie[s] the class members . . . by name, addresses and fax number.” (Doc. 249, Defs.’ Resp. 

Pl.’s Mot. Strike at 4). And, as in Turza, the Court should (1) order Defendants to deposit with the 

Court’s registry $5,711,000 ($500 times 11,422 fax transmissions) as “security for payment” to 

class members, Turza II, 828 F.3d at 608; and (2) set a date certain for Plaintiff to file a proposed 

Notice of Judgment and Attached Claim Information Form, asking each class member “whether 

he or she wants to claim the recovery (with nonresponse implying consent),” Turza III, 701 Fed. 

App’x at 507; and (3) set a date certain for Plaintiff to file a petition for award of attorney fees, 

expenses, and incentive award to Plaintiff. 

Background

This is a certified class action brought pursuant to the Telephone Consumer Protection Act 

of 1991 (“TCPA” or “Act”), 47 U.S.C. § 227(b)(1)(C), which forbids the use of “any telephone 

facsimile machine, computer, or other device to send, to a telephone facsimile machine, an 

unsolicited advertisement,” unless the sender can prove an “established business relationship” 

defense. The TCPA creates a private right of action for any person or entity that receives an 

advertisement in violation of the Act and provides for statutory damages in the amount of $500 for 

each violation as well as injunctive relief against future violations. Id. § 227(b)(3)(A)–(B).

Additionally, the TCPA provides treble damages may be assessed if in the Court’s discretion the 

defendant “willfully or knowingly” violated the act. Id. § 227(b)(3).

From February 10, 2010, to February 28, 2010, Defendants successfully sent 11,422 faxes 

advertising the commercial availability and quality of A-S’s pharmaceutical products and services.

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In response to Plaintiff’s argument that the declarations of undisclosed witnesses should be barred 

(see Doc. 175, Pl.’s Reply Supp. Class Certification at 11), Defendants argued as follows:

Finally, Plaintiff has had access to the hard drive in this matter since December 11, 

2013, which contained the names and addresses of all putative class members. (Dkt. 

# 147-1, p. 6; Dkt. # 171-18, pp. 37-38). Defendants disclosed the names, addresses 

and phone numbers of all putative class members—as well as Defendants’ intent to 

rely on them to support Defendants’ defenses—nearly a year before the close of 

discovery in this matter.

(Doc. 189, Defs.’ Sur-Reply in Opp. Class Certification at 4–5).

On September 27, 2016, the Court certified the following Class: 

All persons or entities who were successfully sent the Fax providing “A-S 

Medication Solutions LLC, Quality Service Guaranteed,” and “Ask about our new 

PedigreeRx Solution!,” between February 10, 2010, and February 28, 2010. 

Physicians Healthsource, Inc. v. A-S Medication Solutions, LLC (“A-S Medication I”), 318 F.R.D. 

712, 720, 725 (N.D. Ill. 2016) (Gottschall, J.)

On August 21, 2018, this Court entered summary judgment in favor of Plaintiff and the 

Class and against Defendants on liability. Physicians Healthsource, Inc. v. A-S Medication 

Solutions, LLC, --- F. Supp. 3d ---, 2018 WL 3993409, at *8 (N.D. Ill. Aug. 21, 2018) (“A-S 

Medication II”) (Kennelly, J.). The Court found that Defendants “drafted a fax to send to the 

former Allscripts customers, targeted to a list of recipients generated from Allscripts’ Salesforce 

database,” and that “using a computer program,” Defendants “sent the fax to 15,666 fax numbers 

from Salesforce,” which was “successfully delivered to 11,422 numbers.” Id. at *1–2. The Court 

held that, although “A-S Solutions argues at length that PHI inappropriately seeks a class 

judgment in the form of a common fund recovery,” this argument was premature since “PHI has 

not sought summary judgment on damages,” which was “an issue for another day.” Id. The Court 

set the matter for status on August 30, 2018 “to set a schedule for further proceedings needed to 

bring the case to a conclusion, and to discuss the possibility of settlement.” Id.

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On August 30, 2018, the Court set the matter for jury trial on December 10, 2018, with a 

final pretrial order due by November 19, 2018. (Doc. 299). On September 10, 2018, the Court 

referred the matter to the Honorable Sheila M. Finnegan for settlement conference. (Doc. 300).

The settlement conference was conducted before Magistrate Judge Finnegan on October 1, 2018, 

but the parties were unable to resolve the matter. (Doc. 302). On October 10, 2018, the Court set 

the matter for status on October 16, 2018. (Doc. 303).

The same day, October 10, 2018, Wallace C. Solberg, one of Plaintiff’s attorneys, called 

defense counsel, Eric Samore, and advised that Plaintiff was seeking only $500 per violation 

statutory damages, and was not seeking treble damages. Solberg advised defense counsel that 

Plaintiff and the class intended to file a motion for summary judgment on damages by October 19, 

2018. Solberg further stated he planned to advise the Court’s clerk of Plaintiff’s intention and to 

possibly ask to move the October 16, 2018 status. Solberg stated that he would hold off on calling 

chambers until he heard back from Samore, who stated he needed to check with his clients and 

“circle back.” Samore sent a confirmatory email as to this conversation. (See Doc. 304-1, 10/10/18 

email from Samore to Solberg). 

On Friday, October 12, 2018, prior to calling or contacting Plaintiff’s counsel, Defendants 

filed their “Motion to Set Briefing Schedule and Evidentiary Hearing on Damages Issue.” (Doc. 

304). The gravamen of Defendants’ Motion is the claim that others in addition to the class members 

identified in the Allscripts Salesforce data may have claims to the $500 per-violation statutory 

damages. (Defs.’ Mot. at 1, 2). In particular, Defendants have taken the 11,422 fax numbers from 

the fax logs and claimed that these fax numbers are “associated with” 62,144 “different medical 

providers” based on data from the National Provider Identifier (“NPI”) Registry, notwithstanding 

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Defendants’ previous agreement that the Saleforce database constitutes “the names and addresses 

of all putative class members.” (Id. at 4).

I. Under Turza, the Court should deny Defendants’ Motion, enter judgment in favor of 

Plaintiff and the certified Class for $500 per fax, and order Defendants to deposit that 

amount as security. 

Defendants’ Motion fails to mention that the Seventh Circuit has issued three decisions, 

two of them published, governing how to distribute damages obtained in a judgment (as opposed 

to a settlement) in a certified TCPA fax class action. Turza I, 728 F.3d at 684; Turza II, 828 F.3d 

at 608; Turza III, 701 Fed. App’x at 507. Defendants’ only mention of any of the Turza cases is to 

miscite Turza I for the proposition that the user of a fax machine must be “annoyed” by a fax in 

order to recover, when the Seventh Circuit said no such thing.

1 (Defs.’ Mot. at 3).

In Turza I, the Seventh Circuit affirmed class certification and summary judgment on

liability, holding that the faxes were “advertisements” and lacked compliant opt-out notice. Turza 

I, 728 F.3d at 683. The Seventh Circuit reversed, however, as to “the remedy,” holding the district 

court erred in treating the class recovery as a “common fund” and awarding a charity a cy pres 

distribution of any residual funds. Id. at 688–89. The Seventh Circuit “remanded with instructions 

to enter a judgment requiring Turza to remit to the registry or to a third-party administrator” the 

amount of statutory damages, and held “[o]nce the court knows what funds are available for 

distribution, it should (if necessary) reconsider how any remainder will be applied.” Id. 

On remand, the district court ordered the defendant to deposit the $4.2 million in total 

statutory damages, and awarded attorney fees based on a “common fund” approach. Turza II, 828 

F.3d at 608. The defendant appealed a second time, and the Seventh Circuit again affirmed in part 

and reversed in part. Id. The Seventh Circuit held that “of each $500 in damages for a given fax, 

 1 “Holtzman testified by deposition that his secretary screened and deleted unwanted faxes.” Turza I, 728 

F.3d at 685.

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counsel are entitled to about $167, and the fax recipient gets the rest. But if a given recipient cannot 

be located, or spurns the money, counsel are not entitled to be paid for that fax.” Turza II, 828 F.3d

at 608. The Seventh Circuit held it did not “foreclose the possiblity” of a cy pres distribution or 

escheat of any “spurned” money, but held the district court’s “decision that any surplus goes back 

to Turza cannot be called either a legal blunder or an abuse of discretion.” Id. 

On the second remand, the district court “approved a mailing to class members asking each 

whether he or she wants to claim the recovery (with nonresponse implying consent) and to update 

any details necessary to ensure that checks reach the correct addresses.” Turza III, 701 Fed. App’x 

at 507. The district court’s Amended Order for Distribution of Judgment Funds directed the 

plaintiff to “distribute to class members the claim information form (Doc 396-2) on or before July 

12, 2017; any responses, including class members’ rejection of their share, shall be due by August 

9, 2017.” (Declaration of Ross M. Good (“Good Decl.”), Ex. A (Turza Doc. 413 ¶ 4(d)). The 

Notice of Judgment and Attached Claim Information Form advised class members that, if the 

information from defendant’s list was correct, “you do not need to do anything else to receive your 

check.” (Good Decl., Ex. B (Turza Doc. 396-2 at 3)).

The defendant filed a third appeal, arguing that, in order to be paid their damages, each 

class member should be required “to verify, under penalty of perjury, that he or she (1) used a 

particular fax number from 2006 through 2008; (2) received at that number a ‘Daily Plan-It’ from 

Turza; (3) had not authorized Turza to send these faxes; and (4) agrees to the retention of class 

counsel and payment of the one-third contingent fee.” Id. 

On November 14, 2017, the Seventh Circuit rejected these arguments and affirmed in an 

unpublished decision. Id. The Seventh Circuit held that the defendant’s first three objections—

that, in order to be sent a check for payment, class members should be required to submit a claim 

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form stating they received the defendant’s unsolicited faxes—“essentially dispute the decision this 

court reached in 2013.” Id. The Seventh Circuit held that it had already ruled in Turza I “that the 

record establishes to what telephone number the faxes had been sent and what the faxes contained,” 

and that “[w]hose fax numbers those were was established from electronic records and does not 

depend on personal recollection.” Id. The Seventh Circuit “added that it does not matter whether 

any class member remembers receiving” the faxes, and that “any given recipient’s (potential) 

consent is irrelevant because the faxes omitted the opt-out notice required by law.” Id. 

As to the fourth objection—that class members must consent to attorney fees—the Seventh 

Circuit held the defendant “implicitly disagrees with our decision of 2016 [Turza II], which 

concluded that class counsel are entitled to receive a third of the award to any class member who 

claims the money.” Id. The Seventh Circuit held that “[n]one of the class members can reject the 

services of class counsel and receive $500 per fax,” and that “[t]he only decision a class member 

must make is to accept or reject $333 per fax.” Id. The Seventh Circuit affirmed and issued the 

mandate immediately. Id.

On the third remand, the district court entered a new Amended Order for Distribution of 

Judgment Funds, stating that “[p]er the Seventh Circuit’s decision, two thirds of the money for 

each fax shall be allocated to the class member sent the fax and one third to Class Counsel as 

attorney’s fees,” and ordering the administrator to “distribute to class members the claim 

information form on or before December 8, 2017,” with “any responses, including class members’ 

rejection of their shares, . . . due by January 5, 2018,” and ordering the administrator to “send 

certified checks to the class members for their portion of their share of the judgment on or before 

January 26, 2018.” (Good Decl., Ex. C (Turza Doc. 435 ¶ 5(c)–(e)). 

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On June 27, 2018, the Turza plaintiff filed a Status Report on Distribution, notifying the 

Court that “[n]one of the class members have elected to forego their share of the judgment,” that 

the administrator would soon be sending checks to the remaining 13 class members who had not 

yet been paid, and that the administrator was “working to reissue or resend several of the earlier 

payments either because the class member belatedly requested a different payee or address 

information or because the check sent certified mail and was returned.” (Good Decl., Ex. D (Turza 

Doc. 452)). On July 2, 2018, the district court held a final status hearing and terminated the case. 

(Good Decl., Ex. E (Turza Doc. 453)). 

Under the Turza line of decisions, the Court should now enter judgment in favor of the 

class members and against Defendants in the amount of $500 per violation under 47 U.S.C. 

§ 227(b)(3)(B), and order Defendants to deposit that amount as “security for payment” to the class

members (including for attorney fees, expenses, and an incentive award to Plaintiff). Turza II, 828 

F.3d at 608. Defendants acknowledge that Plaintiff seeks $500 per violation and does not seek to 

have that amount trebled. (Defs.’ Mot. ¶ 4). Defendants’ Motion does not challenge the $500 per 

violation amount, and instead makes arguments related to distribution. (Id. ¶¶ 1–16). Defendants 

contend the issues presented are who has the right to payment and the manner in which such 

damages should be distributed. (Id. ¶ 6). These issues are to be dealt with after the judgment has 

been entered and the security is deposited under Turza II, 828 F.3d at 608, and Turza III, 701 Fed. 

App’x at 507.

While Defendants assert that “no judgment should be entered until after the proper 

claimants for each fax have been verified through a robust process claim” (Defs.’ Mot. ¶ 12), this 

argument flatly contradicts Turza, where judgment was entered, the defendant was ordered to 

deposit the full amount of damages, and then the class-action administrator commenced the 

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distribution process under the Court’s supervision. Accordingly, Plaintiff and the Class request 

that the Court enter judgment in their favor at $500 per violation and order Defendants to deposit 

$5,711,000 with the Court or a third-party ($500 times 11,422 fax transmissions) as “security for 

payment” under Turza II, 828 F.3d at 608. 

II. After Defendants have deposited the security, Plaintiff will file a fee petition and seek 

an Order for Distribution of Judgment Funds. 

Following Defendants’ deposit of the full statutory damages due at $500 per fax, Plaintiff 

will file a petition for attorney fees, expenses, and incentive award for Plaintiff, and seek entry of 

an Order for Distribution of Judgment Funds, as the Court entered in Turza. (Good Decl., Ex. C

(Turza Doc. 435)). 

Respectfully submitted,

PHYSICIANS HEALTHSOURCE, INC., 

individually and as the representative of a class of 

similarly-situated persons

By: /s/ Wallace C. Solberg

One of the Attorneys for Plaintiff and the Class

Brian J. Wanca

Ryan M. Kelly

Wallace C. Solberg

Ross M. Good

ANDERSON + WANCA

3701 Algonquin Road, Suite 500

Rolling Meadows, IL 60008

Telephone: 847/368-1500

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CERTIFICATE OF SERVICE

I hereby certify that on October 15, 2018, 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/ Wallace C. Solberg

Wallace C. Solberg

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