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Physicians Healthsource, Inc. v. A-S Medication Solutions, LLC

United States District Court, N.D. Illinois, Eastern Division

September 27, 2016

PHYSICIANS HEALTHSOURCE, INC., an Ohio corporation, individually and on behalf of similarly situated persons, Plaintiffs,
v.
A-S MEDICATION SOLUTIONS, LLC, JAMES BARTA, WALTER HOFF and JOHN DOES 1-10, Defendants.

          MEMORANDUM OPINION & ORDER

          Joan B. Gottschall United States District Judge.

         Plaintiff Physicians Healthsource, Inc. (“PHI”), for itself and on behalf of the class it seeks to represent (collectively, “Plaintiffs”), bring this lawsuit against Defendant A-S Medication Solutions, LLC (“A-S”), James Barta, Walter Hoff, and John Does 1-10 (collectively, “Defendants”), alleging violations of the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. 227 et. seq. Specifically, PHI, on behalf of a putative class consisting of the owners of 11, 422 fax numbers, claims that it received an unsolicited fax sent by the defendants. PHI's motion for class certification pursuant to Fed.R.Civ.P. 23 is before the court. (Pls. Mot. Class Cert., ECF No. 147.) For the following reasons, the motion for class certification [147] is granted.

         I. BACKGROUND

         A. Allscripts Obtains Fax Numbers from the Class Members

         Allscripts, LLC (“Allscripts”) is a company that “offer[s] an open, integrated portfolio of healthcare information technology solutions for hospitals, physician practices, and extended care organizations.” [Def. Resp. at 6, ECF No. 171. Allscripts has provided a variety of healthcare-related products and services since its incorporation in 1986. [Id.] One such healthcare solution was Allscripts' “pre-packaged medication fulfillment solutions business” (“MSG”). [Id.] The MSG provided “both medications and software for dispensing and inventory control.” [Id.] Since 2006, Allscripts has used a customer relationship management database called Salesforce. [Id.] Salesforce maintained Allscripts' customers' contact information. [Id.] One of the ways in which Allscripts communicated with its customers and prospective customers was via fax. [Id.] Defendants contend that “if Salesforce included a fax number for a particular entity, it was only because that entity voluntarily provided its fax number to Allscripts, along with permission to fax it something.” [Id. at 7.] This is the basis for Defendants' contention that Allscripts obtained consent from its customers to send them faxes. Allscripts sent information about its various products and services-including the MSG-to its customers and prospective customers via fax. [Id.]

         Brian Moffett has been an Allscripts employee for 21 years. [Def. Resp. at 8, ECF No. 171.]; [Pls. Class Cert. Memo. at 5, ECF No. 147-1.] He is familiar with Allscripts' business practices and how Allscripts keeps track of information pertaining to its customers and prospective customers in Salesforce. [Id.] In his deposition, Moffett testified that Allscripts had a custom and practice of faxing advertisements only with the consent of the recipient. [Def. Resp. at 8, ECF No. 171.] Defendants contend that Allscripts' employees were trained always to ask permission before sending fax advertisements, and that part of asking for permission to send a fax would be to verify the fax number that Allscripts had for that entity in its Salesforce database. [Id.]

         B. A-S purchases Allscripts' MSG

         On March, 2009, A-S and Sav-Rx, LLC (“Sav-Rx”) entered into an Asset Purchase Agreement (“APA”) with Allscripts. [Pls. Class Cert. Memo. at 3, ECF No. 147-1.] A-S purchased Allscripts' MSG, which “include[d] the offering of a formulary of pre-packaged medications and related dispensing software licensed to customers using FirstFill and TouchScript, as currently conducted.” [Id.] A-S purchased “all property and assets primarily used in or primarily held for use in” the MSG, which, among other things, included the following:

The machinery, equipment, furniture, tools, computer hardware and network infrastructure that are primarily used in or primarily held for use in the [MSG] Business…
The inventories held for use primarily in the operation and conduct of the [MSG] Business, including raw materials, packaging materials, goods in process, finished goods, labels and supplies…
The personnel, benefits and payroll records of the Transferred employees…
[A]ll advertising and promotional materials, manuals and data, sales and purchase correspondence, lists of present and former suppliers, all customer information and data including lists of present and former customers…
Any and all software, whether in source code, object code or human readable form (including any intellectual property rights related thereto and associated documentation), that is primarily used in or primarily held for use in the [MSG] Business, including FirstFillTM and TouchScriptTM…
All of the trade names, trademarks, service marks and other marks of [Allscripts] (including brand names, product names, logos, and slogans) and application therefor, other than, for the avoidance of doubt, any of the foregoing using or derived from “Allscripts, ” that are primarily used in or primarily held for use in the [MSG] Business…

[Id. at 9-10.] A-S also assumed “all liabilities and obligations…primarily relating to or arising out of the [MSG] Business or the Assets . . . .” [Id. at 10.] A-S had, for a limited period of time and pursuant to the Marketing Agreement, remote access to Allscripts's Salesforce database, including a login and password. [Id. at 5.]

         A-S used a software system AlphaServer 4100 (“Alpha”) in its internal operations. (Pls. Class Cert. Memo. at 4, ECF No. 147-1.) A-S started using Alpha following the APA. (Id.) Alpha maintains business contact information for all A-S customers. (Id.)

         C. The Fax Blast

         PHI is a former customer of Allscripts. (Def. Resp. at 13, ECF No. 171.) Allscripts and PHI communicated on multiple occasions, including via fax. (Id.) PHI received the fax image (the “Fax”) at issue on February 18, 2010 from A-S. [Pls. Class Cert. Memo. at 5, ECF No. 147-1.] Subsequent forensic analysis of A-S's call records showed that A-S conducted a fax blast between February 10 and February 28, 2010. [Id. at 6.] This broadcast included 15, 669 total fax transmissions to 15, 666 unique fax numbers, and 11, 422 transmissions were documented by the transmission log as fully received error-free transmissions. [Id.]

         Defendant Hoff has been the chief executive officer of A-S since March 2009. [Id.] Hoff is also one of the owners of A-S; he is in charge of the production facility, purchasing and pricing, client relationships, the A-S sales force, legal, regulatory, and IT departments. [Id. at 2- 3.] PHI contends that Hoff “approved” sending the Fax. [Id. at 5.] Hoff testified that A-S acquired PHI's fax number not from Alpha but from the Allscripts Salesforce database, and that Allscripts provided A-S access to the Salesforce database for “a short time, ” during which A-S could log in and run reports. [Pls. Class Cert. Memo. at 5, ECF No. 147-1.] A digital forensic analysis also showed that fax numbers from the A-S fax log for the fax blast matched fax numbers and other corresponding data in Allscripts' Salesforce database. [Def. Resp. at 17, ECF No. 171.] The Fax was transmitted to a list of Allscripts' customers and prospective customers that was generated from Allscripts' Salesforce database rather than A-S's Alpha database. [Def. Resp. at 17, ECF No. 171.]

         D. PHI's Claims

         i. TCPA violation

         PHI advances class-action claims based on alleged violations of The Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. 227 et. seq. The Federal Communications Commission (“FCC”) has authority to prescribe regulations to implement the TCPA. Id. at § 227(b)(2); Mims v. Arrow Fin. Servs., LLC, 132 S.Ct. 740, 744 (2012) (the Act directs the FCC to prescribe implementing regulations). TCPA forbids the use of “any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, ” unless certain exceptions are met. 47 U.S.C. § 227(b)(1)(C).

         PHI claims that Defendants successfully sent 11, 422 unsolicited facsimiles advertising the availability and quality of A-S's pharmaceutical products and services. (Pls. Class Cert. Memo. at 2, ECF No. 147-1.) The Fax was sent to Plaintiffs in a fax blast conducted by the Defendants between February 10, 2010, and February 28, 2010, and was received by PHI on February 18, 2010. (Id. at 2.) TCPA defines an “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise.” Id. § 227(a)(5) (emphasis added).

         ii. Prior Express Invitation or Permission

         Defendants argue that A-S had the recipients' prior express invitation or permission to send the Fax at issue.[1] Defendants have the burden of proving prior express invitation or permission. See Thrasher-Lyon v. Ill. Farmers Ins. Co., 861 F.Supp.2d 898, 905 (N.D. Ill. 2012). The parties do not dispute that A-S obtained the list of fax numbers from Allscripts' Salesforce database. [See Pls. Class Cert. Memo. at 5, ECF No. 147-1.]; [Def. Resp. at 13, ECF No. 171 (“A-S Medication acquired Plaintiff's fax number from Allscripts' Salesforce database of customers.”).] Further, there is no dispute that A-S did not obtain prior express permission from any of the class members directly. [Def. Resp. at 7, ECF No. 171. (“Defendants are not arguing that Allscripts specifically obtained express consent for A-S Medication to send fax advertisements after Allscripts divested the MSG.”).] Rather, Defendants contend that “[i]f Salesforce included a fax number for a particular entity, it was only because that entity voluntarily provided its fax number to Allscripts, along with permission to fax it something.” [Def. Resp. at 7, ECF No. 171.] Accordingly, Defendants argue that the consumers' permission to receive faxes from Allscripts was ...


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