IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

STEPHANIE BROWN, on behalf of 

herself and others similarly situated,

Plaintiff,

v.

PREMIER HEALTH SOLUTIONS, LLC,

Defendant.

Case No. 1:24-cv-00016-MAC

JURY TRIAL DEMANDED

REPORT OF RULE 26(f) MEETING

In accordance with Federal Rule of Civil Procedure 26(f), counsel for the parties, Andrew 

Roman Perrong for Plaintiff, and Deanne Ayers for the Defendant, conferred on February 29, 

2024 and provide the following information:

1. Discussion of Claims, Defenses and Relevant Issues: 

Plaintiff Stephanie Brown claims as follows: Plaintiff has brought this class action under 

the Telephone Consumer Protection Act (TCPA) and Florida Telephone Solicitation Act 

(FTSA), alleging she received multiple telemarketing calls advertising the Defendant’s services, 

despite Plaintiff having placed her residential phone number on the National Do Not Call 

Registry and never having consented to the calls to begin with. Through the classes she has pled, 

Ms. Brown seeks to represent other individuals who received similar communications from the 

Defendant. To prevail on the FTSA claims, the Plaintiff must prove that (1) a telephonic sales 

call, (2) was made to her number, and (3) that such call used an automatic system for the 

selection and dialing of telephone numbers. FLA. STAT. § 501.059(8)(a). To prevail on the TCPA 

claims, the Plaintiff must prove that (1) at least two telemarketing calls, (2) was made to her 

number, (3) within any 12 month period, (4) without emergency purposes, and (5) with her 

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telephone number on the National Do Not Call Registry. Plaintiff is unaware of any cases related 

to this case pending in any state or federal court.

In response, the Defendant Premier Health Solutions, LLC claims as follows: Defendant 

disputes that Plaintiff has properly and completely set forth all elements of each claim that 

Plaintiff must meet to sustain her burden of proof. Further, Plaintiff is an individual who 

engages in litigation, not as a casual consumer but rather as a person who engages in litigation 

for trade and on information and belief engages in serial litigation. On information and belief 

Plaintiff has been a plaintiff in as many as fourteen (14) lawsuits containing substantially 

identical allegations to those made herein. On information and belief Plaintiff may have engaged 

in activity to solicit calls. Defendant maintains that it has not engaged in making or causing to be 

made any unsolicited call to Plaintiff. Defendant believes a forensic examination of Plaintiff’s 

electronic devices will yield further defenses.

Plaintiff’s claims were not typical of the alleged putative class. Plaintiff’s conduct in 

inducing calls, if any, necessitates an inquiry into Plaintiff’s Article III standing, as it is not clear 

her claimed injury is fairly traceable to this Defendant’s conduct. Plaintiff is not an adequate 

class representative. This Plaintiff, as a serial plaintiff, should not be permitted to represent a 

putative class. 

Plaintiffs’ proposed class allegations should be stricken because Plaintiff seeks injunctive 

relief secondary to statutory monetary damages. Specifically, Plaintiff primarily seeks statutory 

monetary damages. Secondary to the aforementioned statutory monetary damages, Plaintiff also 

seeks injunctive relief. Claims for injunctive relief may only be certified under FRCP, Rule 

23(b)(2) where the monetary relief sought is incidental to the injunctive or declaratory relief 

sought. Pursuant to FRCP, Rule 23(b)(2), certification is proper only when injunctive or 

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declaratory relief is the predominant remedy requested for the putative class members. See WalMart Stores, Inc., supra, 131 S. Ct. at 2557; see also Progressive Health & Rehab Corp. v. 

Quinn Med., Inc. (S.D. Ohio 2017) 323 F.R.D. 242, 248 (plaintiff’s claim for injunctive relief 

was stricken because plaintiff sought an individualized award of monetary damages under the 

TCPA that was not incidental to plaintiff’s claim for injunctive relief.).

Plaintiffs’ proposed class definitions should be stricken because they are facially 

overbroad, and the proposed classes are uncertifiable. In the instant matter, it is axiomatic that a 

putative “class must not be defined so broadly that it encompasses individuals who have little 

connection with the claim being litigated; rather, it must be restricted to individuals who are 

raising the same claims or defenses as the representative.” See 7A Wright & Miller, Federal 

Prac. & Proc. § 1760 (3d ed. 2005). Rule 23(a) contains four prerequisites for class certification: 

numerosity, commonality, typicality, and adequacy. A plaintiff seeking class certification has the 

burden proving that the proposed class meets the four requirements. Failure to satisfy even one 

of these elements precludes class certification. After the plaintiff has passed the initial Rule 23(a) 

threshold, the plaintiff must satisfy one of the conditions of Rule 23(b) (one of which is 

predominance) in order to gain class certification. Plaintiff’s proposed definitions are facially 

overbroad and the proposed class uncertifiable because Plaintiff did not properly or sufficiently 

exclude potential class members. Specifically, Plaintiff failed at a minimum, to exclude persons 

that: (1) consented to be called (i.e., provided “prior express invitation or permission”), (2) have 

an “established business relationship”, or (3) did not use their phone for “residential” purposes. 

See 47 U.S.C. § 227(c)(5); 47 C.F.R. §§ 64.1200(c)(2), 64.1200(f)(5) & 64.1200(f)(14) (no DNC 

violation for calls made with the “prior express invitation or permission” of recipient or where 

recipient has an “established business relationship” with the caller); see also Abante Rooter and 

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Plumbing, Inc. v. Pivotal Payments, Inc. (N.D. Cal. 2017, No. 16-CV-05486-JCS) 2017 WL 

733123, at 9 (Section 227(c) “applies to TCPA violations based on calls made to residential 

telephone subscribers, not cellular telephones”); see also Licari Family Chiropractic Inc. v. 

eClinical Works, LLC (M.D. Fla. 2019) 2019 WL 7423551, at 3–5 (denying class certification in 

TCPA case where proposed class did not exclude individuals who solicited the fax in question 

and therefore had no claim).

Plaintiff’s Complaint also reveals a number of other areas where commonality of the 

claims across a putative class fails. For every number that Plaintiff alleges would fall within the 

putative class, there will be individualized questions with regard to: 1) whether the person 

identified from telephone records who received a call actually picked up the call (i.e., did the call 

go to an answering machine); 2) whether that person opted in, and in what manner, to receive a 

call; 3) whether that person pressed “1” to be connected to an agent; 4) whether the person 

pressed “1” and opted in to receive additional information 5) whether that person ultimately 

chose to purchase a good or service. Accordingly, individualized issues predominate over any 

common questions of law or fact in regard to Plaintiff’s Complaint. Plaintiff will not be able to 

meet the requirements of FRCP 23(a)(2) and 23(b)(3), and accordingly, Plaintiff’s class action 

should be dismissed under FRCP 12(b)(6), or in the alternative, be stricken under FRCP 

23(c)(1)(A).

Plaintiff’s individual claims lack merit as this Defendant did not call Plaintiff or cause 

Plaintiff to be called, alternatively if such a call was made, which is denied, there was consent 

and authorization for such call.

2. Informal Disclosures: The parties will have identified witnesses and identified

and produced documents falling within the definition of initial disclosures under Rule 

26(a)(1) in advance of the Rule 16 Conference. 

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3. Formal Discovery: 

The Parties refer the Court to the attached proposed scheduling order setting forth 

applicable dates in this case. 

Plaintiff’s Position: The Plaintiff will need to seek discovery on the calling conduct at 

issue, including the number of calls that were sent to the Plaintiff and the class, class members 

whose numbers are protected by the FTSA, Defendant’s policies and procedures regarding 

TCPA compliance, and discovery related to any vendors or third parties which may have placed 

the calls or which otherwise may be liable for the calling conduct at issue. The Plaintiff will need 

to take between 3-5 depositions. Third Party discovery may be necessary if it is revealed that a 

third-party vendor placed the calls at issue. 

Defendant’s Position: Defendant will need discovery, including forensic examination of 

Plaintiff’s electronic devices, apps, incoming and outgoing calls, incoming and outgoing texts 

and incoming and outgoing emails. Defendant will need discovery of identities used by Plaintiff, 

call forwarding employed by Plaintiff, and conduct establishing Plaintiff as a litigant by trade 

and/or serial litigant. Defendant anticipates up to 10 depositions. However, should a class to be 

certified, additional depositions and discovery will be necessary. Defendant disputes that 

Plaintiff is entitled to the discovery she seeks as she is not a qualified lead plaintiff. Further, in a 

TCPA case, permitting a facially uncertifiable class to proceed to discovery can result in 

Defendant being required to respond to burdensome and expensive discovery regarding every 

call it made during the class period on the grounds that each call could potentially be a TCPA 

violation, even though a class that broad could never be certified under FRCP, Rule 23. See Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 558-559 (2007 (emphasizing the expense and burden 

of discovery in class actions and stressing that neither “careful case management,” nor “careful 

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scrutiny of the evidence at the summary judgment stage,” will protect defendants from incurring 

enormous discovery costs).

4. Electronic Discovery: 

Plaintiff: The Plaintiff requests and expects that all electronic discovery in this case will 

be produced in PDF files along with any attachments other than calling data, which should be 

produced in its native format. Each party is to presumptively bear the cost of producing the 

electronic discovery.

Defendant: Defendant expects electronic and forensic discovery of Plaintiff’s electronic 

devices.

5. Expert Discovery:

Plaintiff’s Position: The Plaintiff may retain a class-wide expert with respect to 

analyzing the class-wide calling data for, among other things, identifying class members on the 

do not call registry, identifying class members, and evaluating the invalidity of any class-wide 

consent data.

Defendant’s Position: Defendant disputes that Plaintiff qualifies to obtain a class 

certification. However, Defendant will retain an expert to conduct a forensic examination of 

Plaintiff’s electronic devices, downloaded apps, call forwarding on Plaintiff’s devices, identities 

utilized by Plaintiff, and Plaintiff’s incoming and outgoing calls, texts and emails. Defendant 

may retain an expert to refute any allegation that Defendant called Plaintiff or anyone else on the 

Do Not Call registry without request or other authorization.

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6. Settlement or Resolution:

Plaintiff’s Position: The Plaintiff will tender a class-wide settlement demand to the 

Defendant after the Plaintiff has propounded and received responses to discovery to ascertain the 

potential number of class members and any applicable class-wide claims and defenses. The 

Plaintiff is agreeable to resolve this matter on a class-wide basis through ADR.

Defendant’s Position: Defendant maintains that a class should not be certified and that 

Plaintiff is not a proper representative of any defined class.

7. Other Matters:

The parties are unable to jointly consent to trial before a magistrate judge. 

Dated: March 29, 2024

/s/ Andrew Roman Perrong

Andrew Roman Perrong (E.D. Tex. # 333687PA)

Perrong Law LLC 

2657 Mount Carmel Avenue

Glenside, Pennsylvania 19038

Phone: 215-225-5529 (CALL-LAW) 

Facsimile: 888-329-0305

a@perronglaw.com

Attorney for Plaintiff

/s/ Deanne C. Ayers

Deanne C. Ayers

State Bar No. 01465820

dayres@ayersfirm.com

AYERS & AYERS

4205 Gateway Drive, Suite 100

Colleyville, Texas 76034

(817) 267-9009 Telephone

(817) 318-0663 Facsimile

ATTORNEYS FOR DEFENDANT

PREMIER HEALTH SOLUTIONS, L.L.C.

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