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, and 

WALTER HOFF,

Defendants.

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Case No.: 12-cv-5105

Hon. Matthew F. Kennelly

PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR ENTRY OF JUDGMENT

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

follows in support of its Motion for Entry of Judgment (Doc. 312), and in response to the Response 

to Plaintiff’s Motion for Entry of Judgment filed by Defendants, A-S Medication Solutions, LLC, 

and Walter Hoff (Doc. 321). 

Introduction

Defendants’ opposition to Plaintiff’s motion for entry of judgment, their arguments before 

this Court on November 8, 2018, and their proposed Order, are all part of Defendants’ attempt to 

ignore and/or misconstrue the holdings in the Turza trilogy and well as this Court’s Order granting 

summary judgment, and is further premised on misstating the relief Plaintiff seeks in its Motion. 

To restate, Plaintiff seeks “judgment for the Class in the amount of $5,709,000 ($500 for each of 

the 11,418 violations), pursuant to 47 U.S.C. § 227(b),” and that Defendants be ordered “to pay 

$5,709,000 to the Court’s registry as security for payment to class members.” (Pl.’s Mot. at 3).

The central premise of Defendants’ opposition is that “[b]ecause the TCPA does not 

provide for a common fund recovery, a total damages award cannot be entered before 

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individualized challenges to claims of purported class members are resolved.” (Defs.’ Resp. at 4). 

But that is precisely what happened in Turza I, where the district court entered judgment in favor 

of the class in the amount of $4,215,000, and the Seventh Circuit affirmed in part and reversed in 

part, directing the district court to “enter a judgment requiring [the defendant] to remit to the 

registry or to a third-party administrator” the full amount of statutory damages due to the class.

Holtzman v. Turza, 728 F.3d 682, 683 (7th Cir. 2013) (“Turza I”). The fact that Defendants call 

the security deposit for payment of judgment that was ordered in Turza I and requested by Plaintiff 

and the Class here a request for a “common fund” does not change the fact that it is a “security 

deposit.”

Defendants argue that a claims process is required “before entry of judgment and mailing 

of checks” because there is “uncertainty” as to “which purported class members have a right to 

recover and the amount of their recovery.” (Defs.’ Resp. at 4). This too is contrary to the Turza

procedures as well as the Court’s entry of summary judgment. In Turza, there were no claim forms 

mailed to determine liability and to determine which class members had a right to recover. Instead, 

forms were mailed to each class member to determine whether they wanted the judgment perviolation amount, or whether they “spurned” the money. Failure to respond to the notice was 

construed as “consent” that the class member wanted to be sent the money.

Thus, under Turza I, and the subsequent decisions in Holtzman v. Turza, 828 F.3d 606 (7th 

Cir. 2016) (“Turza II”), and Holtzman v. Turza, 701 Fed. App’x 506, 507 (7th Cir. 2017) (“Turza 

III”), the appropriate course of action to close this case is for the Court to (1) enter judgment in the 

amount of $5,709,000; (2) order Defendants to remit that amount as security for payment to the 

class; (3) allow Plaintiff to file a petition for attorney fees, expenses, and incentive award to 

Plaintiff; and (4) allow Plaintiff to move for an Order for Distribution of Judgment Funds. As in 

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Turza, once those steps are complete, Defendants may appeal the Court’s decisions on class 

certification and summary judgment to the Seventh Circuit, as they have indicated they intend to 

do. (Def.’s Resp. at 1, n.1). 

Argument

I. Plaintiff’s request that the Court enter judgment in the amount of $5,709,000 ($500 

for each of the 11,418 violations) and further order Defendants to deposit that amount 

into the Court registry is exactly in line with the Turza trilogy.

Defendants’ response essentially attempts to re-litigate the Court’s summary-judgment 

ruling and attack the contents of a Plan of Distribution that Plaintiff has not yet submitted and the 

Court has not yet ruled upon. According to Defendants, “each class member has the burden of 

proving all of the elements of a TCPA claim before judgment can be entered and checks mailed.” 

(Defs.’ Opp. at 3). That is wrong. The Court has already held that Defendants are liable to Plaintiff 

and the certified class for violating the TCPA, finding 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.” A-S Medication II, 324 

F. Supp. 3d at 976.

Indeed, at status on November 8, 2018, in response to Defense counsel’s argument that 

Plaintiff and the Class “haven’t proven their case,” the Court stated:

See, that’s where you are wrong. They have proven their case. They have won. You 

did not win. You lost. Okay? It’s a question of whether somebody gets money. And 

it’s different from an individual case because it’s not an individual case. It’s a class 

action. The fact that nobody shows up to collect the money doesn’t mean that you 

get a judgment on that.

(Hr’g Tr., Nov. 8, 2018, attached as Exhibit A, at 16).

Defendants’ argument that each class member must file an affirmative “claim form” to 

receive the statutory damages to which they are entitled flatly contradicts the Turza line of 

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decisions. See Turza I, 728 F.3d at 683 (affirming summary judgment for certified TCPA class at 

$500 per fax); Turza II, 828 F.3d at 608 (7th Cir. 2016) (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”); Turza III, 701 Fed. App’x at 

507 (affirming order requiring notice to class members using defendant’s target list “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”).

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, 

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.” Id. The Seventh 

Circuit held it did not “foreclose the possibility” of a cy pres distribution or escheat of any 

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“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 (emphasis added). 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.” (See Pl.’s Resp. Mot. to Set Briefing Sch., Doc. 308 at 6, citing 

Turza Doc. 413 ¶ 4(d)). The Notice of Judgment and Attached Claim Information Form in Turza

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.” (Id.). 

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. 

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 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 

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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,” 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.” (Doc. 308 at 7 (citing Turza Doc. 435 ¶ 5(c)–(e)). 

At the November 8, 2018, status, Defendants’ counsel argued as follows:

I think what they contemplated was exactly what I’m saying, which is that for every 

class member that can prove their claim or prove that they’re eligible for payment, 

in accordance with the claims procedures established by the Court, they’re entitled 

to recovery; but not an aggregate amount for which we have no idea what that—as 

your Honor said, it could be a million dollars. It could be two million. Who knows?

(Ex. A, Hr’g Tr., Nov. 8, 2018, at 17).

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Again, that is exactly contrary to what the Seventh Circuit stated in the Turza cases, as set 

forth above. Just like the rejected argument in Turza III, Defendants here ask the Court to revisit 

its entry of summary judgment in favor of the Class as to liability, which is simply an attempt to 

relitigate liability. As the Court expressly stated, Plaintiffs “have proven their case,” and “they 

have won.” (Ex. A, Hr’g Tr., Nov. 8, 2018, at 16). As in Turza, Plaintiff will submit a Plan of 

Distribution that will ask that Notice be mailed to Class members advising them of the judgment 

and allowing them the opportunity to “spurn” the money if they so choose, with a non-response 

implying consent, just as was approved by the Seventh Circuit in Turza.

Defendants’ flat-out misinterpretation of Turza, and their Proposed Order, Doc. 322, are 

part of Defendants’ attempt to turn the judgment that Plaintiff seeks to have entered here, based 

on the Court’s ruling that Defendants are liable for violating the TCPA, into a claim-form process 

whereby the judgment-creditors, i.e., the Plaintiff and the Class, are required to affirmatively 

submit a claim form to be paid and further, that where a Class member does not submit a claim 

form, the Class member does not get paid. Defendants’ proposed Order further provides that a 

security deposit need not be submitted. (Doc. 322 ¶ 1). That is not what Turza holds, as set forth 

above, and is an obvious end-run around the fact that Defendants have lost, and should be required 

to pay the per violation amount, unless the Class member affirmatively states they do not want it.

As the Court stated:

In other words, what I ought to be doing here is entering a judgment in an amount—

and I think it’s probably the amount that’s in plaintiff’s motion that says here is the 

number of faxes that were sent out times $500, that’s a number; defendant, deposit 

the money; and, then, we—I make you guys come up with a procedure by which 

claims are going to be made on that. I don’t know what has to happen in order for 

claims to be made.

(Ex. A, Hr’g Tr., Nov. 18, 2018, at 5). However, Plaintiff respectfully submits that based on the 

Turza decisions, there are no claims to adjudicate. Instead, as stated, Class members will be sent 

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forms and if they do not “spurn” the money, they will be sent checks, which is exactly what Turza 

approved, and exactly what Plaintiff will request. But that process is to be set forth in Plaintiff’s 

proposed Plan of Distribution, to be submitted in the future pursuant to a schedule to be set by the 

Court.

Finally, the cases relied upon by Defendants from other circuits are inapposite in that they 

address a “common fund,” and not a security deposit as set forth in the Turza trilogy. Again, even 

Defendants’ proposed Order recognizes Plaintiff seeks a security deposit. (Doc. 322 ¶ 1). In 

Allapattah Servs., Inc. v. Exxon, 333 F.3d 1248, 1258, n.13 (11th Cir. 2003), the Eleventh Circuit 

declined to allow an aggregate award in an antitrust class action where actual damages varied 

widely by class member. In McLaughlin v. Ame. Tobacco Co., 522 F.3d 215, 231 (2d Cir. 2008), 

the Second Circuit reversed class certification in a RICO action against cigarette manufacturers, 

reasoning in part that it would be impossible to measure the damages, and holding the district court 

could not simply “estimate” the damages. 522 F.3d at 231. 

This case, in contrast, involves statutory damages, automatically imposed by the statute at 

$500, and so there is no individual determination to be made. Excluding opt-outs, there are 11,418 

violations. The amount of the damages due to the class is 11,418 x $500 ($5,709,000). Allapattah 

and McLaughlin are irrelevant, and they present no bar to entry of judgment.

Moreover, Defendants have no interest in how the $500 is split among the recipients to 

whom checks are mailed. The only interest Defendants have is in the total amount of damages 

owed, which is fixed by statute, and inquiring how the targets who receive checks may choose to 

split them does not change that amount. In fact, under the Seventh Circuit’s decision in Mullins v. 

Direct Digital, Inc., 795 F.3d 654, 670 (7th Cir. 2015), in discussing ascertainability, the Court 

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cited to a series of cases holding that a defendant has no interest in the method of distributing 

aggregate damages awarded among class members. 

While damages here are not “aggregate” but are instead discrete recoveries for each of the 

violations, once that $500 check is written to the class members identified by the fax logs, 

Defendants similarly should have no interest as to how that money gets distributed as it does not 

change the amount of their liability for the TCPA violation. See, e.g., In re Urethane Antitrust 

Litig., 768 F.3d 1245, 1269 (10th Cir. 2014) (rejecting Seventh Amendment challenge to allocation 

of damages award among class members because defendant “has no interest in the method of 

distributing the aggregate damages award among the class members”); In re Pharm. Indus. 

Average Wholesale Price Litig., 582 F.3d 156, 197–98 (1st Cir. 2009) (rejecting due process 

challenge to entry of class-wide judgment and award of aggregate damages); Allapattah, 333 F.3d

at 1258 (“[A] defendant has no interest in how the class members apportion and distribute a [n] 

[aggregate] damage [award] among themselves.”); Hilao v. Estate of Marcos, 103 F.3d 767, 786 

(9th Cir. 1996) (noting that defendant’s interest is “only in the total amount of damages for which 

it will be liable,” not “the identities of those receiving damage awards”); Six Mexican Workers v. 

Ariz. Citrus Growers, 904 F.2d 1301, 1307 (9th Cir. 1990) (“Where the only question is how to 

distribute the damages, the interests affected are not the defendant’s but rather those of the silent 

class members.”).

In sum, the Court should enter judgment for the Class and order Defendants to deposit the 

statutory damages under Turza, and reject Defendants’ attempt to relitigate the Court’s ruling on 

the merits. 

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II. Defendants’ argument that Plaintiff has only “fax numbers,” and that there is 

“uncertainty” as to who has “a right to recover,” is belied by the evidence produced 

in the case and by Defendants’ unequivocal statements that they “disclosed the names, 

addresses, and phone numbers of all putative class members on January 29, 2015,” 

and that Defendants “disclosed the names, addresses, and phone numbers of all 

putative class members . . . nearly a year before the close of discovery in this case.”

Plaintiff has contemporaneously with the filing of this Reply moved to file under seal the 

following documents: 

• A spreadsheet titled “Fax Number List 090413.xlsx,” that was provided by 

Defendant’s Counsel on or about December 11, 2014, and that was used to create “AS005891 -

AS006224.pdf.” (Declaration of Ross M. Good (“Good Decl.”), attached hereto as Exhibit A, ¶ 

2). This was the “target list” distilled by A-S employee Marcello Barth that was used to send the 

Fax and is identified on the motion for leave to file under seal as Exhibit 1. (Id. ¶ 4). 

• “A-S 0030922 (Schiff Salesforce analysis).XLSX,” which was also produced by 

Defendants. (Good Decl. ¶ 6). This is the result of the digital analysis conducted by Defendants’ 

expert Yaniv Schiff that compared the Fax Logs to the SalesForce database in an effort to support 

the argument that the targets of the Fax were the same as those in the SalesForce database. (See

Schiff Declaration regarding same, Doc. 171-1). In addition to names and fax numbers of the 

targets of the Fax, this exhibit also includes a substantial amount of addresses of class members. 

It is attached as Exhibit 2 of Plaintiff’s motion to file under seal.

• List of the names and fax numbers who were successfully sent the Fax and which 

was provided to the claims administrator for the sending of class notice. On or about October 12, 

2016, Plaintiff’s counsel requested that Plaintiff’s expert, Robert Biggerstaff, email him the list of 

11,422 successful fax transmissions at issue in this case. (Good Decl. ¶ 7, 8). It is attached as 

Exhibit 3 of Plaintiff’s motion to file under seal.

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In sum, these documents provide the names, fax numbers, and many if not most of the 

addresses of Class members. Defendants’ assertion that they do not know the identity of the Class 

is completely contrary to the arguments they have made throughout this litigation, and is belied by 

the documents they have produced. For example, in their opposition to class certification, Doc. 

171, Page ID 2658, Defendants state: “Exhibit A [the Fax] was faxed to a list of A-S Medication 

and Allscripts customers and prospective customers that was generated from Allscripts Salesforce 

database.” Defendants added that a digital analysis (performed by their expert Yaniv Schiff, see 

Exhibit 2 above) shows that the fax numbers from the A-S Medication fax log for the February 10, 

2010 fax transmission at issue in this matter matched the fax numbers and other corresponding 

data in Allscripts’ Salesforce database.” (Id.) 

In their sur-reply in opposition to class certification, Doc. 189 at Page ID 3846-47

(emphasis added), in response to Plaintiff’s argument that declarations of “putative class members” 

should be barred because they were not timely disclosed, Defendants argued the following:

Defendants disclosed the names, addresses and phone numbers of all putative class 

members on January 29, 2015 . . . (and) Plaintiff has had access to the hard drive in 

this matter since December 11, 2013, which contained the names and fax numbers 

of all putative class members. 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.

In their L.R. 56.1(b)(3) statement of additional facts in opposition to Plaintiff’s original 

motion for summary judgment, Doc. 227, Page ID 5083, ¶ 11, Defendants stated: “The fax at issue 

was targeted to be sent to a list of existing A-S Medication and Allscripts customers that was 

generated from Allscripts’ Salesforce database.” Later in that same narrative, Defendants again 

referenced their “digital forensic analysis” that Defendants stated “shows that fax numbers from 

the A-S Medication fax log for the February 2010 fax transmission at issue in this matter matched 

the fax numbers and other corresponding data in Allscripts’ Salesforce database.” (Id.)

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In their memorandum in opposition to Plaintiff’s motion for summary judgment, Doc. 282, 

Page ID 6789, Defendants again state “The Fax was targeted to a list of existing A-S Medication 

and Allscripts customers generated from Allscripts Salesforce database to get them to upgrade 

from TouchScripts to PedigreeRX.” Defendants added that “Fax numbers from the A-S 

Medications fax log for the February 2010 fax transmission at issue matched the fax numbers in 

Allscripts Salesforce database.” (Id., Page ID 6790).

In addition, Plaintiff’s Motion for Class Notice, which provided that Notice be sent to the 

fax numbers identified by Plaintiff’s expert Robert Biggerstaff in his report, was unopposed. (Doc. 

203). Defendants’ argument that no names were identified in proposed Notice ignores that 

Defendants made no objection on those grounds and that Plaintiff has the names, addresses, and 

fax numbers of the persons and entities in the class (as stated by Defendants). Moreover, the list 

that was sent to the Class Administrator, which Plaintiff has designated as Exhibit 3 and seeks to 

file under seal, demonstrates that the list contains names and fax numbers. 

As stated, the fax target list that A-S employee Marcello Barth used to send the Fax (Exhibit 

1 above), contains the names and numbers of the targets. Defendants are of course aware of this 

fact as they are the ones that produced the list. As set forth in Plaintiff’s motion for class 

certification, Barth testified that that the target list was provided to him by the A-S employee 

Lauren McElroy. (Doc. 147-1, Page ID 1033). Barth testified the list for the Fax was on an Excel 

file, which had a substantial amount information on it which he “cleaned up,” and what was left 

was the company and the fax number—“I got rid of everything else.” (Id.)

Defendants’ lack of knowledge of the Class members’ identity is also at odds with the 

Schiff “digital analysis” referenced above. In other words, when Defendants were attempting to 

(unsuccessfully) argue to this Court that they had prior express permission to send the Fax because 

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the Fax targets were the same as those targets in the SalesForce database (and thus said 

“permission” carried over to them), Defendants knew exactly who the Class members were 

because they had “disclosed the names, addresses and phone numbers of all putative class members 

on January 29, 2015,” and because “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 at 

Page ID 3846-47). 

At the same time, Defendants claim they don’t. Defendants’ both-sides-of-the-fence 

argument as to the identity of the class should be rejected. To attempt to support their diametrically 

opposed position, Defendants had their expert, Yaniv Schiff (the same expert who compared the 

Fax Log to the Sales Force Database and found overwhelming overlap to support the “prior express 

permission argument, see Doc. 171-1, Page ID 2748, ¶¶ 3, 4), take fax numbers from the A-S Fax 

Logs and compare them to data downloaded in February 2017 from the National Provider 

Identifier (“NPI”) Registry. (Def.’s Resp. at 4). Based on that comparison, Mr. Schiff claims that 

these fax numbers of the identified Class members are “associated with” 62,144 “different medical 

providers” based on that data.

Thus, if a fax is sent to the figurative Dr. Smith at the Oak Park Hospital fax number where 

Dr. Smith provides medical services, Mr. Schiff’s NPI analysis would conclude that every 

healthcare provider in the NPI database that listed that same Oak Park Hospital fax number is 

“associated” with that fax number. From that, Defendants assert that all of those “associated” with 

that fax number must now be provided notice and an opportunity to claim a portion of the per 

violation damages. Thus, according to Defendants, it does not matter that Dr. Smith was identified 

in the “Barth” target list, or the Fax List sent to the Claims Administrator, or that Dr. Smith 

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appeared in both the SalesForce Database and in the Fax Log in the Schiff digital analysis, and it 

does not matter that Defendants claimed Plaintiff knows exactly who is in the Class because 

Defendants repeatedly proposed that information.

First, Defendants’ argument is absurd on its face and would make a nullity of the TCPA as 

to any fax sent to any target who happens to be in the NPI database. Reduced to its essence, 

Defendants’ argument is an impermissible attempt to reconstitute its target list seven years after 

the fact, and after repeatedly representing to the Court and to Plaintiff that Defendants knew 

exactly who was in the Class.

Second, Defendants’ argument comes too late and makes a nullity of the earlier unopposed 

class notice that was sent to the 11,422 persons/entities identified in the Fax Log who were notified 

of class certification and were given an opportunity to opt-out. If Defendants wanted to object to 

the class notice, they should have done so.

Third, the NPI list was downloaded by Mr. Schiff seven years after the Fax was sent, 

making it irrelevant. But even if Defendants had downloaded a contemporaneous NPI list and done 

a comparison, the fact of the matter is that the Class was identified in documents produced by 

Defendants and in this case, and Defendants repeatedly represented to the Court that they knew 

exactly who was in the Class. Defendants’ “we don’t know who the Class is” gambit should be 

rejected.

Conclusion

Plaintiff respectfully submits that 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 

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to Plaintiff). Turza II, 828 F.3d at 608. The Court should then set a deadline for Plaintiff to file its 

Petition for attorneys’ fees, expenses, and incentive award and to set a date by which Plaintiff is 

to file a Plan for Distribution.

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 November 21, 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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