Exhibit 1

Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 1 of 34 PageID #:6
FILED

4/13/2020 3:49 PM

IN THE CIRCUIT COURT OF COOK COUNTY, imNOIS DOROTHY brown

COUNTY DEPARTMENT, CHANCERY DIVISION CIRCUIT CLERK COOK COUNTY, IL

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• AMBASSADOR ANIMAL HOSPITAL, LTD., )

individually and as the representative of a )

class of similarly-situated persons,

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CLASS ACTION COMPLAINT

Plaintiff, Ambassador Animal Hospital, Ltd. (“Plaintiff’), brings this action on

behalf of itself and all other persons similarly situated and, except as to those

allegations pertaining to Plaintiff or its attorneys, which allegations are based upon

personal knowledge except as stated otherwise, allege the following upon information

and belief against defendant, Hill’s Pet Nutrition, Inc. (“Hill’s” or “Defendant”):

PRELIMINARY STATEMENT

1. On behalf of itself and the class, Plaintiff seeks statutory damages and

other relief from Defendant’s practice of sending unsolicited advertisements by

facsimile.

2. Defendant has sent advertisements by facsimile in an attempt to market

or sell property, goods,.or services.

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3. The federal Telephone Consumer Protection Act. 47 USC § 227 (the

“TCPA”), prohibits any person or entity from sending or having an agent send any CM

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“unsolicited advertisement” by facsimile (“junk faxes” or “unsolicited faxes”). a

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an “established business relationship,” then the sender must include a specific, clear,

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§ 227 (b) (2) (D); and 47 C.F.R. § 64.1200 (a) (4) (iii).

5. The TCPA provides a private right of action and provides minimum

statutory damages of $500 per violation. If the Court finds the advertisements were

sent knowingly or willfully, then the Court can increase the damages up to three

times $500.

6. Unsolicited faxes damage their recipients. An unsolicited fax wastes the

recipient’s valuable time that would have been spent on something else. A junk fax

interrupts the recipient’s privacy. Unsolicited faxes tie up telephone lines, prevent

fax machines from receiving authorized faxes, prevent their use for authorized

outgoing faxes, use paper and ink toner for the sender’s marketing purposes, cause

undue wear and tear on the recipients’ fax machines, and require additional labor to

attempt to discern the source and purpose of the unsolicited message.

7. On behalf of itself and all others similarly situated, Plaintiff brings this

case as a class action asserting claims against Defendant under the TCPA and the

common law of conversion.

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8. Plaintiff seeks an award of statutory damages for each violation of the

TCPA. CM

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9. Plaintiff is an Illinois corporation with its principal place of business in

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10. Defendant is a Delaware corporation with its principal place of business •O’

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LL 11. Jurisdiction is conferred by 735 ILCS 5/2-209 in that Defendant has

transacted business in Illinois, and/or committed tortious acts in Illinois related to

the matters complained of herein. Venue is proper in Cook County pursuant to 735

ILCS 5/2-101, etseg. because Defendant is not a resident of Illinois, and because some

of the tortious acts complained of occurred in Cook County, Illinois. Specifically, some

of the illegal faxing, alleged herein took place in Cook County, Illinois.

FACTS

12. Defendant is a pet nutrition company.

13. On information and belief, Defendant has sent thousands of

advertisements in fax broadcasts to one or more lists of targeted recipients

throughout the United States and throughout the class period alleged herein.

Plaintiff received at least two of them, one in March 2018 and one in May 2018, true

and correct copies of which are attached as Exhibit A.

14. Exhibit A and other faxes sent by or on behalf of Defendant advertised

property, goods, or services available for purchase from Defendant.

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15. Plaintiff is among the persons to whom Defendant sent advertisements

by fax. CN

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16. Plaintiff did not expressly invite or give permission to receive o

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o- TCPA. See, e.g., Exhibit A.

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ul than 39 other recipients without their prior express permission or invitation, and

without the opt-out notice required on faxes sent to persons with whom Defendant

can demonstrate an “established business relationship.” This allegation is based, in

part, on the fact that Plaintiff never expressly invited or permitted anyone to send

the subject fax advertisements to them, that the faxes attached as Exhibit A are

generic, form faxes, that sending advertisements by fax is an inexpensive way to

reach a wide audience, and that the faxes attached as Exhibit A have no opt-out

notice.

CLASS REPRESENTATION ATJ.EGATTONS

19. Plaintiff brings this action as a class action on behalf ofitself and a class

of all others similarly-situated as members of the class, and initially defined as

follows^

All persons sent at least one telephone facsimile message (a “fax”): (l)

on or after April 13, 2016; (2) from or on behalf of Hill’s; (3) advertising

property, goods, or services of Hill’s; (4) without the fax recipient’s prior

express invitation or permission; and (5) without the clear and

conspicuous opt-out notice required by 47 C.F.R. § 64.1200 (a) (4) (iii).

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Plaintiff anticipates modifying the proposed class definition—including proposing

subclasses if appropriate—after discovery about the scope of Defendant’s fax CN

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advertising practices as well as discovery as to any potential affirmative defenses o

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5 Defendant may plead.

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c have a controlling interest, Defendant’s employees, officers, and directors, ’3'

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21. On information and belief, Defendant’s fax advertising campaigns

involved other, substantiallysimilar advertisements also sent without the opt-out

notice required by the TCPA. Plaintiff intends to locate those advertisements in

discovery. Exhibit B. a Demand for Preservation ofAll Tangible Documents Including

Electronically Stored Information.

22. This action is brought, and may properly be maintained as, a class action

under 735 ILCS 5/2-801. This action satisfies the class action prerequisites because

the class is too numerous for individual joinder, common questions of law or fact

predominate over individual questions, the representative parties and their attorneys

will fairly and adequately protect the interests ofthe entire class, and this class action

is an appropriate method for the fair and efficient adjudication of the controversy.

23. Numerositv/Impracticalitv of Joinder-' On information and belief, the

class includes more than thirty-nine persons and, thus, is so numerous that joinder

of all members is impracticable. The precise number of class members and their -

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Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 6 of 34 PageID #:11
identities are unknown to Plaintiff, but can be obtained from Defendant's records or

the records of third parties. CM

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CJ 24. Questions ofLaw or Fact Common to the Class- There is a well-defined 8

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any questions affecting only individual members of the class. These common legal 8

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which may be determined without reference to the individual circumstances of any

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class member, include, but are not limited to the following:

a. Whether Defendant sent unsolicited advertisements by fax;

b. Whether Defendant’s faxes advertised the commercial

availability or quality of any property, goods, or services;

c. The manner and method Defendant used to compile or obtain the

list(s) of fax numbers to which they sent advertisements by fax;

d. Whether Defendant faxed advertisements without first obtaining

the recipients’ express permission or invitation;

e. Whether Defendant included clear and conspicuous opt-out

notices on its faxed advertisements, including all content the TCPA requires;

f. Whether Defendant is directly or vicariously liable for violating

the TCPA;

g- Whether Plaintiff and the other class members are entitled to

statutory damages;

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h. Whether Defendant should be enjoined from faxing

advertisements in the future! CN

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o l. Whether the Court should award trebled damages! and S

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generally and the TCPA specifically.

26. Appropriateness! A class action is an appropriate method for the fair

and efficient resolution of this controversy. Plaintiff envisions no difficulty in the

management of this case as a class action.

COUNT I

TELEPHONE CONSUMER PROTECTION ACT. 47 U.S.C. S 227

27. Plaintiffincorporates the preceding paragraphs as though fully set forth

herein.

28. Plaintiff brings Count I on behalf of itself and a class of similarlysituated persons.

29. The TCPA prohibits the “use of any telephone facsimile machine,

computer or other device to send an unsolicited advertisement to a telephone -

facsimile machine....” 47 U.S.C. § 227 (b) (l).

30. The TCPA defines “unsolicited advertisement,” as “any material

advertising the commercial availability or quality of any property, goods, or services

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Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 8 of 34 PageID #:13
which is transmitted to any person without that person’s express invitation or

permission.” 47 U.S.C. § 227 (a) (4). CM

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31. The TCPA provides: o

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A person may, if

otherwise permitted by the laws or rules of court of a state,

bring in an appropriate court of that state:

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(A) An action based on a violation of this

subsection or the regulations prescribed under this

subsection to enjoin such violation,

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(B) An action to recover for actual

monetary loss from such a violation, or to receive

$500 in damages for each such violation, whichever

is greater, or

(C) Both such actions.

47 U.S.C. § 227 (b) (3).

32. In relevant part, the TCPA states that “[t]he [Federal Communications]

Commission shall prescribe regulations to implement the requirements of this

subsection ... in implementing the requirements of this subsection, the Commission

shall provide that a notice contained in an unsolicited advertisement complies with

the requirements under this subparagraph only if . . . (i) the notice is clear and

conspicuous . . .” 47 U.S.C. § 227 (b) (2) (D) (i).

33. Additionally, “a notice contained in an unsolicited advertisement

complies with the requirements under this subparagraph only if . . . (ii) the notice

states that the recipient may make a request to the sender of the unsolicited

advertisement not to send any future unsolicited advertisements to a telephone

facsimile machine or machines and that failure to comply, within the shortest

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Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 9 of 34 PageID #:14
reasonable time, as determined by the Commission, with such a request meeting the

requirements under subparagraph (E) is unlawful. . 47 U.S.C. § 227 (b) (2) (D) (ii). CM

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o The shortest reasonable time has been determined to be thirty (30) days. 47 C.F.R. § S

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2 64.1200 (a) (4) (iii) (B).

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. . 47 U.S.C. § 227 (b) (2) (D) (iv).

35. “A notice contained in an unsolicited advertisement complies with the

requirements under this subparagraph only if . . . (v) the telephone and facsimile

machine numbers and the cost-free mechanism . . . permit an individual or business

to make such a request at any time on any day of the week.” 47 U.S.C. § 227 (b) (2)

(D) (v).

36. The FCC’s regulations of opt-out notices on facsimile advertisements are

set forth at 47 C.F.R. § 64.1200 (a) (4) (iii)

37. The Court, in its discretion, can treble the statutory damages if the

violation was knowing or willful. 47 U.S.C. § 227.

38. Defendant violated 47 U.S.C. § 227 et seq. by sending advertisements

) by fax to Plaintiff and the other class members without their prior express invitation

or permission and, to the extent Defendant will contend they sent the facsimiles on

the basis of “established business relationship,” by failing to include the clear,

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Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 10 of 34 PageID #:15
conspicuous, and content-rich opt-out notice required on the first page of each such

facsimile. CN

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39. Facsimile advertising imposes burdens on unwilling recipients that are o

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opt-out notice is designed to ensure that the recipients know how to prevent and avoid S

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conspicuously provide the opt-out content to the recipients, then the recipients are

unable to stop the burdens imposed by this form of advertisement.

40. The TCPA is a strict liability statute and Defendant is liable to Plaintiff

and the other class members even if its actions were negligent.

41. Defendant is liable because it sent the faxes, caused the faxes to be sent,

participated in the activity giving rise to and/or constituting the violation, the faxes

were sent on its behalf, or under general principles of vicarious liability applicable

under the TCPA, including actual authority, apparent authority and ratification.

42. Defendant knew or should have known that Plaintiff and the other class

members had not given express invitation or permission for Defendant or anybody

else to send them advertisements by facsimile and that the faxes did not display the

opt-out notices required by the TCPA (including the FCC’s regulations).

43. Defendant’s actions caused damages to Plaintiff and the other class

members. Receiving Defendant’s junk faxes caused recipients to lose paper and toner

consumed in the printing of Defendant’s faxes. Moreover, the subject faxes used

(

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Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 11 of 34 PageID #:16
Plaintiffs and the class’s fax machines. The subject faxes cost Plaintiff time, as

Plaintiffs valuable time was wasted receiving and reviewing Defendant’s illegal CN

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faxes, time that otherwise would have been spent on Plaintiffs business activities. o

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i: sustained by Plaintiff and the other class members from the sending of the faxes

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other class members, did not intend to violate their privacy, and did not intend to

waste the recipients’ valuable time with Defendant’s advertisements, those facts are

irrelevant because the TCPA is a strict liability statute.

WHEREFORE, Plaintiff, individually and on behalf of all others similarlysituated, demands judgment in its favor and against Defendant, jointly and severally

as follows ^

A. That the Court adjudge and decree that the present case may be

properly maintained as a class action, appoint Plaintiff as the representative of the

class, and appoint Plaintiffs counsel as counsel for the class!

B. That the Court award $500.00 in statutory damages for each violation

of the TCPA;

C. That the Court treble the statutory damages to $1,500 per violation if it

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finds that either Defendant’s conduct was knowing or willful;

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D. That the Court enter an injunction prohibiting Defendant from sending

advertisements by fax without first demonstrating that it first obtains express CM

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o invitation or permission to fax advertisements or that it includes the required opt- S

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E. That the Court award costs and such further relief as the Court may

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\Z COUNT II

CONVERSION

45. Plaintiff incorporates all paragraphs preceding Count I as though fully

set forth herein.

46. Plaintiff brings Count II on behalf of itself and a class of similarlysituated persons and alleging claims under the common law of conversion.

47. By sending unsolicited faxes to Plaintiff and the other class members,

Defendant improperly and unlawfully converted their fax machines, toner and paper

to Defendant’s own use. Defendant also converted the recipients’ time to its own (

marketing use.

48. Immediately prior to the sending of the unsolicited faxes, Plaintiff and

the other class members owned an unqualified and immediate right to possession of

their fax machines, paper, toner, and employee time.

49. By sending the unsolicited faxes, Defendant permanently

misappropriated the class members’ fax machines, toner, paper, and employee time

to its own use. Such misappropriation was wrongful and without authorization.

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50. Defendant knew or should have known that its misappropriation of

paper, toner, and employee time was wrongful and without authorization. CM

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51. Plaintiff and the other class members were deprived of the use of the fax o

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O’ of their receipt of unsolicited fax advertisements from Defendant.

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Defendant’s illegal faxes. Just the time spent in retrieving an unsolicited facsimile

from the fax machine, reviewing it, and tossing it in the garbage can is burdensome

and wasteful and converts Plaintiffs valuable time to Defendant’s marketing effort.

Defendant knew or should have known business time is valuable to Plaintiff and the

other class members.

WHEREFORE, Plaintiff demands judgment in favor of itself and the entire

class of similarly-situated others and against Defendant as follows^

A. That the Court adjudge and decree that the present case may be

properly maintained as a class action, appoint Plaintiff as the representative of the

class, and appoint Plaintiffs counsel as counsel for the class;

B. That the Court award appropriate damages;

C. That the Court award punitive damages.

D. That the Court award reasonable attorney’s fees!

E. That the Court award costs of suit; and

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F. That the Court award such further relief as it may deem just and proper.

Respectfully submitted, CM

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AMBASSADOR ANIMAL HOSPITAL, LTD., individually

and as the representative of a class of similarly-situated

persons,

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One of its attorneys

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Phillip A. Bock (ARDC #6224502)

. BOCK, HATCH, LEWIS & OPPENHEIM, LLC (#44533)

134 N. La Salle St., Ste. 1000

Chicago, IL 60602

Telephone: 312-658-5500

Facsimile: 312-658-5555

Email: service@classlawyers.com

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Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 15 of 34 PageID #:20
FILED

4/13/2020 3:49 PM

DOROTHY BROWN

CIRCUIT CLERK

COOK COUNTY, IL

2020CH03822 CM

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EXHIBIT A

Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 16 of 34 PageID #:21
RECEIVED 03/2B/2018 09:53AM 16308309629

066-486-9741

AMBASSADOR AH

03-20-2018 8:55 AMBASSADOR AN HOSP HANOUER P 1/1

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Hill’s® PRESCRIPTION DIE!

is on its way!

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E Dear Veterinary Health Care Team,

We want to be part of your effort In providing the best care and

support for your NEW Prescription Diet® patients. In the first week

ofApril, please look for your Hill's* Envelope, which includes:

1. Coupon pad

2. A letter with coupon usage instructions

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Hill's® Envelope You

Will Receive

Coupon Pad (10 Sheets)

If you have any questions, please contact your Hill's Representative,

Or call our Veterinary Consultation Service (VCS) at 1-800-548-VETS (8387).

Enjoy!

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To be removed from our distribution list, please call 1-866-486-9741

Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 17 of 34 PageID #:22
oa/ia/i/mo o^tJbHM ibjoojoab^y AMHAbbALIUK AH

AMBASSADOR AN HOSP HANOUER P

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05-14-2018 13:37 800-442-9910 1/1

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1 order /clinic, 1 min - 5 max free merchandisers

Order

Quantity

DVM List Unit

Price

Total

SKU Product Description Size Cost MSRP*

Prescription Diet® Canine Dental Care

Chews Treats Small Size 10895 6 * 12 oz $75.96 $18.99

Prescription Diet® Canine Dental Care

Chews Treats Regular Size 10894 6 * 12 oz $75.96 $18.99

Total

Get Your Free Merchandisers

(5 max free merchandisers)

Prescription Diet® Canine Dental Care

Chews Treats Regular Singles 10896 35 • ,99 oz $44.10 $1.89

TO PLACE YOUR ORDER:

Fax: 1-800-442-9910 Email: customerservice(g>hillspet.com Call; 1-800-354-4557

_______________________ Sold To:_____

_______________________ Ship To: ____

_______________________ Order Date:__

To be removed from our distribution list, please call 1-866-486-9741

Customer Name:

Address:______

City, State, Zip: _

for more Information on Hill's* Prescription Olet*, visit HlllsVet.com, call Customer Sarvlca at 1-800-354-4557 or contact your Hill’s Representative. Order

fulfillment based on product availability end It not subject to substitution. Hill’s reserves the Hill’s reserves the right to cancel the promotion ot any dme. OZOIH

Hill’s Pet Nutrition, Ire. •/•» Hill’s Pet Nutrition, Inc.* The Unit MSRP’s listed In this document ere recommendations only Bnd there Is no obligation on tha

retailer to comply with these recommenditions.

Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 18 of 34 PageID #:23
FILED

4/13/2020 3:49 PM

DOROTHY BROWN

CIRCUIT CLERK

COOK COUNTY, IL

2020CH03822

9067743

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EXHIBIT B

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Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 19 of 34 PageID #:24
BOCK, HATCH, LEWIS & OPPENHEIM, LLC

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CM 134 North La Salle Street, Suite 1000

Chicago, IL 60602

312-658-5500 (Phone) . 312-658-5555 (Fax)

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April 13, 2020

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do The Corporation Trust Company

Corporation Trust Center

1209 Orange Street

Wilmington, DE 19601

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Re-' Demand for Preservation of Tangible Documents and Electronically

Stored Information in Ambassador Animal Hospital, Ltd. v. Hill’s

PetNutrition, Inc.

Dear sir or madame;

We represent Ambassador Animal Hospital, Ltd. (“Plaintiff’) in the above

mentioned case. Plaintiff alleges that Hill’s Pet Nutrition, Inc. (“Defendant” or

“you”) sent unsolicited advertisements by fax in violation of the TCPA.

We consider electronic data to be a valuable and irreplaceable source of

discovery and evidence in this matter. The laws and rules prohibiting the

destruction of evidence apply to electronic data with the.same force as they apply to

other kinds of evidence.

Plaintiff hereby demands that you preserve all documents, tangible things

and electronically stored information potentially relevant to the issues in this cause.

As used in this document, “you” and “your” refers to Hill’s Pet Nutrition, Inc., its

predecessors, successors, parents, subsidiaries, divisions or affiliates, and their

respective officers, directors, agents, attorneys, accountants, employees, partners or

other persons occupying similar positions or performing similar functions. “Third

parties,” as used in this document, refer to anyone taking action on behalf of either

Defendant and any employees or agents thereof.

Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 20 of 34 PageID #:25
Hill’s Pet Nutrition, Inc.

April 13, 2020

Page 2 of 8

You should anticipate that much of the information subject to disclosure or

responsive to discovery in this matter is stored on your current and former

computer systems and other media and devices (including personal digital

assistants, voice-messaging systems, online repositories and cell phones).

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Electronically stored information (“ESI”) should be afforded the broadest

possible definition and includes (by way of example and not as an exclusive list)

potentially relevant information electronically, magnetically or optically stored as:

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Image and facsimile files (e.g, .pdf, .tiff, .jpg, .gif images);

Digital communications (e.g., e-mail, voicemail, instant

messaging, text messages, and all social media content);

Word processed documents and drafts (e.g., using Word or

WordPerfect or any other word processing system);

Spreadsheets and tables (e.g., Excel, Lotus 123, or any other

computer-generated worksheets);

Network access and server activity logs;

Databases (e.g., Access, Oracle, SQL Server data, SAP);

Contact and Relationship Management Data (e.g, Outlook,

Salesforce, ACT!);

Calendar and Diary Application Data (e.g., Outlook, Yahoo,

Google, blog tools);

Online Access Data (e.g, temporary internet files, history,

cookies);

Presentations (e.g, PowerPoint, Corel Presentations)

Project management application data; and

Back up and archival files (e.g, Zip, .GHO).

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ESI also includes information or data stored on proprietary software,

databases or systems.

ESI resides not only in areas of electronic, magnetic and optical storage

media reasonably accessible to you, but also in areas you may deem not reasonably

accessible. You are obliged to preserve potentially relevant evidence from both these

sources of ESI, even if you do not anticipate producing such ESI.

The demand that you preserve both accessible and inaccessible ESI is

reasonable and necessary. Pursuant to amendments to the Federal Rules of Civil

Procedure that have been approved by the United States Supreme Court (eff.

12/1/05), you must identify all sources of ESI you decline to produce and

demonstrate to the court why such sources are not reasonably accessible. For good

cause shown, the court may then order production of the ESI, even if it finds that it

is not reasonably accessible. Accordingly, even ESI that you deem reasonably

Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 21 of 34 PageID #:26
Hill’s Pet Nutrition, Inc.

April 13, 2020

Page 3 of 8

inaccessible must be preserved in the interim so as not to deprive the Plaintiff of its

right to secure the evidence or the Court of its right to adjudicate the issue.

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You must act immediately to preserve potentially relevant ESI including,

without limitation, information with the earlier of a Created or Last Modified date

on or after January 1, 2015 through the date of this demand and concerning:

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a. All electronic mail (“e-mail”) and information about e-mail

(including message contents, header information, and logs of e-mail

systems usage) sent or received by Defendant, third parties, or

anyone relating to’Defendant or third parties!

b. All other e-mail and information about e-mail (including message

contents, header information, and logs of e-mail systems usage)

containing information about Defendant or third parties or work

performed for Defendant of third parties!

c. All databases (including all records and field structural information

in such databases) containing any reference to and/or information

about Defendant or Defendant’s intended fax recipients, or third

parties or third-parties’ intended fax recipients!

d. All logs of faxing activity (including all reports indicating success or

failure of attempted transmission) containing information about

Defendant and/or Defendant’s intended fax recipients, or third

parties or third parties’ intended fax recipients!

e. All word processing files and file fragments containing information

about Defendant or third parties!

f. All electronic data files and file fragments created by application

programs that process financial, accounting, and billing information

related to Defendant or third parties!

g. All files and file fragments containing information from electronic

calendars and scheduling programs regarding Defendant and/or fax

transmissions sent on behalf of Defendant, or third parties and/or

fax transmissions sent on behalf of third parties!

h. All electronic data files and file fragments created or used via

electronic spreadsheet programs where such data files contain

information about Defendant and/or Defendant’s intended fax

recipients, or third parties and/or third parties’ intended fax

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Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 22 of 34 PageID #:27
Hill’s Pet Nutrition, Inc.

April 13, 2020

Page 4 of 8

recipients; including files and file fragments created by Defendant

or third parties;

All other electronic data containing information about Defendant or

third parties; and

All e-mail from third party sources that may contain references or

correspondence relating to Defendant or third parties.

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efforts to destroy or dispose of such evidence. You must also intervene to prevent

loss due to routine operations and employ proper techniques and protocols suited to

protection of ESI. Be advised that sources of ESI are altered and erased by

continued use of your computers and other devices. Booting a drive, examining its

contents or running any application will irretrievably alter the evidence it contains

and may constitute unlawful spoliation of evidence. Consequently, alteration and

erasure may result from your failure to act diligently and responsibly to prevent

loss or corruption of ESI. Nothing in this demand for preservation of ESI should be

understood to diminish your concurrent obligation to preserve document, tangible

things and other potentially relevant evidence.

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B. Suspension of Routine Destruction

You are directed to immediately initiate a litigation hold for potentially

relevant ESI, documents and tangible things, and to act diligently and in good faith

to secure and audit compliance with such litigation hold. You are further directed to

immediately identify and modify or suspend features of your information systems

and devices that, in routine operation, operate to cause the loss of potentially

relevant ESI. Examples of such features and operations include:

Purging the contents of e-mail repositories by age, capacity or other

criteria;

Using data or media wiping, disposal, erasure or encryption

utilities or devices;

Overwriting, erasing, destroying or discarding back up media;

Re-assigning, re-imaging or disposing of systems, servers, devices

or media;

Running antivirus or other programs effecting wholesale metadata

alteration;

Releasing.or purging online storage repositories;

Using metadata stripper utilities;

Disabling server or IM logging; and,

Executing chive or file defragmentation or compression programs.

Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 23 of 34 PageID #:28
Hill’s Pet Nutrition, Inc.

April 13, 2020

Page 5 of 8

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You should take affirmative steps to prevent anyone with access to your data,

systems and archives from seeking to modify, destroy or hide electronic evidence on

network or local hard drives (such as by deleting or overwriting files, using data

shredding and overwriting applications, defragmentation, re-imaging or replacing

drives, encryption, compression, steganography or the like). With respect to local

hard drives, one way to protect existing data on local hard drives is by the creation

and authentication of a forensically qualified image of all sectors of the drive. Such

a forensically qualified duplicate may also be called a bitstream image or clone of

the drive. Be advised that a conventional back up of a hard drive is not a

forensically qualified image because it only captures active, unlocked data files and

fails to preserve forensically significant data that may exist in such areas as

unallocated space, slack space and the swap file.

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With respect to the hard drives and storage devices maintained offsite,

including Cloud Based Data Storage, including any File Transfer Protocol Host

Account or Server Storage, whether provided by a server owned or maintained by

your subsidiaries, agents, and/or contractors, maintained by a company on behalf of

you or shared by you and Defendant or any third parties, demand is made that you

preserve the ESI on those devices.

With regard to all data storage for Defendant or any employee, subsidiary,

contractor, or agent, stop any activity which my result in the loss of such electronic

data, including the rotation, destruction, overwriting, and/or erasure of such media

in whole or in part, unless a true and correct copy of each such electronic file has

been made and steps have been taken to assure that such copy will be preserved

and accessible for purposes of this litigation

D. Preservation in Native Form

You should anticipate that certain ESI, including but not limited to

spreadsheets and databases, will be sought in the form or forms in which it is

ordinarily maintained. Accordingly, you should preserve ESI in such native forms,

and you should not select methods to preserve ESI that remove or degrade the

ability to search your ESI by electronic means or make it difficult or burdensome to

access or use the information efficiently in the litigation. You should additionally

refrain from actions that shift ESI from reasonably accessible media and forms to

less accessible media and forms if the effect of such actions is to make such ESI not

reasonably accessible.

Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 24 of 34 PageID #:29
Hill’s Pet Nutrition, Inc.

April 13, 2020

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You should further anticipate the need to disclose and produce system and

application metadata and act to preserve it. System metadata is information

describing the history and characteristics of other ESI. This information is typically

associated with tracking or managing an electronic file and often includes data

reflecting a file’s name, size, custodian, location and dates of creation and last

modification or access. Application metadata is information automatically included

or embedded in electronic files but which may not be apparent to a user, including

deleted content, draft language, commentary, collaboration and distribution data

and dates of creation and printing. Be advised that metadata may be overwritten or

corrupted by careless handling or improper steps to preserve ESI. For e-mail,

metadata includes all header routing data and Base 64 encoded attachment data, in

addition to the To, From, Subject, Received Date, CC and BCC fields.

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With respect to servers like those used to manage e-mail (e.g., Microsoft

Exchange, Lotus Domino) or network storage (often called a user’s “network share”),

the complete contents of each user’s network share and e-mail account should be

preserved. There are several ways to preserve the contents of a server depending

upon, e.g., its RAID configuration and whether it can be downed or must be online

24/7. Please call to discuss the sufficiency of preservation methods if you have

questions.

G. Ancillary Preservation

You must preserve documents and other tangible items that may be required

to access, interpret or search potentially relevant ESI, including programs, utilities,

logs, control sheets, specifications, indices, naming protocols, file lists, network

diagrams, flow charts, instruction sheets, data entry forms, abbreviation keys, user

ID and password rosters, legacy or proprietary devices, or the like.

H, Paper Preservation of ESI is Inadequate

As hard copies do not preserve electronic searchability or metadata, they are

not an adequate substitute for, or cumulative of, electronically stored versions. If

information exists in both electronic and paper forms, you should preserve both

forms.

Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 25 of 34 PageID #:30
Hill’s Pet Nutrition, Inc.

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I. Agents, Attorneys and Third Parties CM

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Your preservation obligation extends beyond ESI in your care, possession or

custody and includes ESI in the custody of others that is subject to your direction or

control. Accordingly, you must notify any current or former agent, attorney,

employee, custodian or contractor in possession of potentially relevant ESI to

preserve such ESI to the full extent of your obligation to do so, and you must take

reasonable steps to secure their compliance.

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We desire to work with you to agree upon an acceptable protocol for

forensically sound preservation and can supply a suitable protocol, if you will

furnish an inventory of the systems and media to be preserved. Else, if you will

promptly disclose the preservation protocol you intend to employ, perhaps we can

identify any points of disagreement and resolve them. A successful and compliant

ESI preservation effort requires expertise. If you do not currently have such

expertise at your disposal, we urge you to engage the services of an expert in

electronic evidence and computer forensics. Perhaps our respective expert(s) can

work cooperatively to secure a balance between evidence preservation and burden

that’s fair to both sides and acceptable to the Court.

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K. Do Not Delay Preservation

I am available to discuss reasonable preservation steps; however, you should

not defer preservation steps pending such discussions if ESI may be lost or

corrupted as a consequence of delay. Should your failure to preserve potentially

relevant evidence result in the corruption, loss or delay in production of evidence to

which we are entitled, such failure would constitute spoliation of evidence, and we

will not hesitate to seek sanctions.

Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 26 of 34 PageID #:31
Hill’s Pet Nutrition, Inc.

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L. Confirmation of Compliance CM

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Please confirm that you have taken the steps outlined in this letter to

preserve ESI and tangible documents potentially relevant to this action. If you have

not undertaken the steps outlined above, or have taken other actions, please

describe what you.have done to preserve potentially relevant evidence.

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(312)658-5500

phil@classlawvers.com

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Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 27 of 34 PageID #:32
Return Date: No return date scheduled

Hearing Date: 8/11/2020 10:30 AM -10:30 AM

Courtroom Number: 2102

Location: District 1 Court

Cook County, IL

FILED

4/13/2020 7:53 PM

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS,D0R0THY BR0WN

COUNTY DEPARTMENT, CHANCERY DIVISION CIRCUIT CLERK

COOK COUNTY, IL

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MOTION FOR CLASS CERTIFICATION

Plaintiff, Ambassador Animal Hospital, Ltd., on behalf of itself and all others

similarly situated, respectfully moves the Court pursuant to 735 ILCS 5/2-801, et

seq.. to certify a class in this case, offering the following in support thereof

1. • Plaintiff proposes the following class definition:

All persons sent at least one telephone facsimile message (a “fax”): (i)

on or after April 13, 2016; (2) from or on behalf of Hill’s; (3) advertising

property, goods, or services of Hill’s! (4) without the fax recipient’s

prior express invitation or permission! and (5) without the clear and

conspicuous opt-out notice required by 47 C.F.R. § 64.1200 (a) (4) (iii).

Excluded from the proposed class are Defendant, any entity in which Defendant has

a controlling interest, Defendant’s employees, officers, and directors, Defendant’s

legal representatives, heirs, successors, and assigns, and any Judge assigned to this

action, and his or her family.

2. The class defined above is so numerous that joinder of all members is

impracticable. 735 ILCS 5/2-80l(l). A class action is appropriate when joinder is

economically impracticable for both the litigants and the court. 735 ILCS 5/2-80l(l);

Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 28 of 34 PageID #:33
see also Steinberg v. Chicago Med. Sch., 69 Ill. 2d 320 (1977). YVhen.there is a large

number of potential claimants, and the individual amount of each claim is relatively CM

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small, Illinois courts are particularly receptive to a class action. See Miner v. o

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guideline”). Class-related discovery will provide the Court with the necessary

details, but on information and belief the class in this case exceeds 40 members.

3. There are questions of fact or law common to the class, which

predominate over any question affecting only individual members. 735 ILCS 5/2-801

(2). The case involves common fact questions about Defendant’s practice of sending

advertisements by facsimile and common legal questions under the federal

Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”), such as;

Whether Defendant sent unsolicited advertisements by fax;a.

b. Whether Defendant’s faxes advertised the commercial

availability or quality of any property, goods, or services;

c. The manner and method Defendant used to compile or obtain

the list(s) of fax numbers to which they sent advertisements by fax;

d. Whether Defendant faxed advertisements without first

obtaining the recipients’ express permission or invitation;

2

Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 29 of 34 PageID #:34
e. Whether Defendant included clear and conspicuous opt-out

notices on its faxed advertisements, including all content the TCPA requires; CM

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]• Whether Defendant's conduct constituted common law

conversion.

4. In P.J.’s Concrete Pumping Serv., 345 Ill. App. 3d 992, 1003 (2d Dist.

2004), the Appellate Court explained why certification is especially appropriate in a

case involving uniform misconduct:

The primary factual issue in this case is a uniform billing practice that

allegedly violated the Consumer Fraud Act in the same manner as to

all class members. The propriety of such a uniform practice is

amenable to being resolved in a class action. Once the trial court finds

that a predominating question of fact or law exists, the presence of

individual questions does not necessarily defeat class certification.

Id., citing Kennedy v. Commercial Carriers. Inc., 294 Ill. App. 3d 34, 39 (1st Dist.

1997). Similarly, this case will focus squarely on Defendant’s fax advertising

campaigns.

5. Plaintiff and its counsel will adequately protect the interests of the

class. 735 ILCS 5/2*801 (3). The adequate representation requirement is designed

3

Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 30 of 34 PageID #:35
to ensure that all class members will receive proper, efficient, and appropriate

protection of their interests in the presentation of the claims. See Gordon v. Boden, CM

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counsel experienced in class actions generally and the TCPA specifically.

6. This class action is an appropriate method for the fair and efficient

adjudication of the controversy. 735 ILCS 5/2-801 (4). Section 5/2-801 (4) requires

that the “class action is an appropriate method for the fair and efficient adjudication

of the controversy.” 735 ILCS 5/2-801(4). When the first three statutory criteria are

met, this “manifests] that the final requirement of the statute is fulfilled.”

Steinberg. 69 Ill. 2d at 339. See also Barliantv. Follett Corp., 74 Ill. 2d 226, 239-40

(1978). As demonstrated above, the first three criteria are met in this action.

7. Moreover, when determining whether a class action is appropriate,

courts often consider whether the class action device can best secure economies of

time, effort and expenses and promote uniformity of decision or accomplish other

ends of equity and justice in the case under consideration. See, e.g., Gordon, 224 Ill.

App. 3d at 203. Here, the individual class members suffered damages that, while

cognizable, are small in terms of their dollar value. Given the small amount of

money at issue for each class member and the fact that proof of the class’s claims

4

Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 31 of 34 PageID #:36
will involve the same central issues, this single case—rather than hundreds of

individual cases—offers the best (and perhaps only) means for litigating these CM

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i and as the representative of a class of similarly-situated

persons,

By: /s/ Phillip A. Bock

One of its attorneys

Phillip A. Bock (ARDC #6224502)

BOCK, HATCH, LEWIS & OPPENHEIM, LLC (#44533)

134 N. La Salle St., Ste. 1000

Chicago, IL 60602

Telephone: 312-658-5500

Facsimile: 312-658-5555

service@classlawyers.com

CERTIFICATE OF SERVICE

I hereby certify that I caused a true and correct copy of the foregoing Motion

for Class Certification to be served on each Defendant with the Summons and Class

Action Complaint.

/s/ Phillip A. Bock

5 '

Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 32 of 34 PageID #:37
Return Date: No return date scheduled

Hearing Date: 8/11/2020 10:30 AM -10:30 AM

Courtroom Number: 2102

Location: District 1 Court

Cook County, IL

FILED

4/23/2020 1:59 PM

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS DOROTHY brown

CIRCUIT CLERK

COOK COUNTY, IL

2020CH03822

COUNTY DEPARTMENT, CHANCERY DIVISION

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NOTICE OF MOTION

On July 6. 2020, at 10-30 a.m, or as soon thereafter as counsel may be

heard, I shall appear before the Honorable Judge David B. Atkins, or any Judge

sitting in his stead, in Courtroom 2102 of the Richard J. Daley Center, 50 W.

Washington Street, Chicago, Illinois, and then and there present Plaintiffs

Motion for Class Certification

Is/ Phillip A. Bock________

One of Plaintiffs Attorneys

Phillip A. Bock (ARDC #6224502)

Bock, Hatch, Lewis & Oppenheim LLC

134 N. La Salle Street, Suite 1000

Chicago, IL 60602

Telephone^ 312-658-5500

Email: service@classlawvers.com

Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 33 of 34 PageID #:38
CERTIFICATE OF SERVICE

I hereby certify that I caused a true and correct copy of the foregoing Notice CM

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Case: 1:20-cv-03326 Document #: 1-1 Filed: 06/05/20 Page 34 of 34 PageID #:39