Wakefield v. Visalus, Inc.
Filing
344
Opinion and Order - After reviewing Defendant's arguments and the evidence presented at trial, the Court finds that the class certification was, and remains, proper and meets the requirements of Federal Rule of Civil Procedure 23. Defendant's Motion to Decertify the Class (ECF 306 ) is DENIED. Defendant's Motion to Strike Plaintiff's Sur-Reply (ECF 342 ) is also DENIED. Signed on 8/21/2019 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LORI WAKEFIELD, individually and on
behalf of a class of others similarly situated,
Case No. 3:15-cv-1857-SI
OPINION AND ORDER
Plaintiff,
v.
VISALUS, INC.,
Defendant.
Scott F. Kocher and Stephen J. Voorhees, FORUM LAW GROUP, 811 SW Naito Parkway,
Suite 420, Portland, OR 97204; Benjamin H. Richman, Rafey S. Balabanian, Eve-Lynn J. Rapp,
J. Aaron Lawson, and Lily E. Hough, EDELSON PC, 123 Townsend Street, Suite 100, San
Francisco, CA 94107; and Gregory S. Dovel, Simon Franzini, and Jonas Jacobson, DOVEL &
LUNER LLP, 201 Santa Monica Boulevard, Suite 600, Santa Monica, CA 90401. Of Attorneys for
Plaintiff and the Certified Class.
Joshua M. Sasaki. Jonathan H. Singer, and Nicholas H. Pyle, MILLER NASH GRAHAM & DUNN
LLP, 3400 U.S. Bancorp Tower, 111 SW Fifth Avenue, Portland, OR 97204; John M. O’Neal and
Zachary S. Foster, QUARLES & BRADY LLP, 2 N. Central Avenue, One Renaissance Square,
Phoenix, AZ 85004; and Christine M. Reilly, MANATT, PHELPS & PHILLIPS LLP, 11355 W.
Olympic Boulevard, Los Angeles, CA 90064. Of Attorneys for Defendant.
Michael H. Simon, District Judge.
After a three-day jury trial that resulted in a verdict for Plaintiff Lori Wakefield on behalf
of herself and a certified class of others similarly situated, Defendant ViSalus, Inc. (“ViSalus”)
has moved to decertify the class. In its motion, ViSalus raises several challenges to class
PAGE 1 – OPINION AND ORDER
certification, the evidence supporting the jury verdict, and the requirements for establishing
liability under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. After
considering whether class certification remains appropriate in light of the evidence introduced at
trial, the Court finds that it is and denies Defendant’s motion.
STANDARDS
An order granting or denying class certification may be altered or amended at any time
before the entry of final judgment. FED. R. CIV. P. 23(c)(1)(C). Until a final judgment has
entered, a class certification order is “not final or irrevocable, but rather, it is inherently
tentative.” Officers for Justice v. Civil Serv. Comm’n of the City & Cty. of S.F., 688 F.2d
615, 633 (9th Cir. 1982). This rule provides district courts with broad discretion to determine
whether a class should be certified and to revisit that certification as appropriate “throughout the
legal proceedings before the court.” Armstrong v. Davis, 275 F.3d 849, 871 n.28 (9th Cir. 2001).
“[T]he judge remains free to modify [a certification order] in the light of subsequent
developments in the litigation.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160 (1982).
This gives the district court flexibility to address problems with a certified class as they arise up
to and even after a jury trial. See, e.g., Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016)
(reviewing class certification order after jury trial). “A district court may decertify a class at any
time.” Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 966 (9th Cir. 2009).
The same standards used for analyzing class certification under Rule 23 of the Federal
Rules of Civil Procedure are applied when determining whether to decertify a class. Marlo v.
United Parcel Serv., Inc., 639 F.3d 942, 947 (2011). Because “[t]he party seeking [to maintain]
class certification bears the burden of demonstrating that the requirements of Rules 23(a) and (b)
are met,” United Steel, Paper, Forestry, Rubber, Mfg. Energy, Allied Indus. & Serv. Workers
Int’l Union v. ConocoPhillips Co., 593 F.3d 802, 807 (9th Cir. 2010), a plaintiff bears the burden
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throughout litigation to establish that certification remains proper, Marlo, 639 F.3d at 947-48;
accord Lightfoot v. District of Columbia, 246 F.R.D. 326, 332 (D.D.C. 2007) (“As the proponent
of continued class certification, Plaintiffs [retain] the burden of establishing that [all] of the
requirements for class certification . . . are met.”).
The district court also retains an independent obligation to perform a “rigorous analysis”
to ensure that the requirements of Rule 23 are satisfied. Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 350-51 (2011). To pursue her claim on behalf of a class, “a plaintiff must demonstrate
numerosity, commonality, typicality, and adequate representation of the class interest.” Marlo,
639 F.3d at 946 (2009) (citing FED. R. CIV. P. 23(a)). In addition to these requirements, Rule
23(b) requires that a class may be maintained only if “the questions of law or fact common to
class members predominate over any questions affecting only individual members, and that a
class action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” FED. R. CIV. P. 23(b)(3).
“Normally, the district court resolves factual issues related to class certification, making
its findings based on the preponderance of the evidence, even if they overlap with the merits of
the case.” Mazzei v. Money Store, 829 F.3d 260, 268 (2d Cir. 2016) (citing Amgen v. Conn. Ret.
Plans & Tr. Funds, 568 U.S. 455, 465-66 (2013)). Although the Ninth Circuit has not directly
addressed how a jury’s factual findings should be treated when determining factual issues in a
post-trial motion for decertification, the Court finds the reasoning of the Second Circuit in
Mazzei persuasive. In that case, the court similarly was faced with a post-trial motion for
decertification that involved factual questions “both relevant to the (de)certification motion and
an element of the class’s merits claim.” Id. (emphasis in original). The Second Circuit held that
“when a district court considers decertification (or modification) of a class after a jury verdict,
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the district court must defer to any factual findings the jury necessarily made unless those
findings were ‘seriously erroneous,’ a ‘miscarriage of justice,’ or ‘egregious,’” thus applying the
same standard used in a motion for a new trial based on the weight of the evidence. Id. at 269.
When the Court must make factual findings on issues not necessarily decided by the jury’s
verdict, it should do so using the preponderance of the evidence standard that normally applies
when making a determination on class certification. Id.
BACKGROUND
ViSalus is a multi-level marketing company that sells weight-loss products and other
nutritional dietary supplements, including energy drinks. Individual members sign up with
ViSalus to be “promoters,” and promoters purchase products from ViSalus and re-sell them to
customers of the promoter. Plaintiff Lori Wakefield signed up to be a promoter with ViSalus in
late 2012 but did not sell any ViSalus products and decided to cancel her ViSalus membership
after two months. Although Plaintiff cancelled her account in March 2013, she received
telephone solicitation calls from ViSalus in April 2015. Plaintiff brought claims against
Defendant for violating the TCPA, alleging that she and a class of similarly situated individuals
had received telephone calls promoting ViSalus products or services using an artificial or
prerecorded voice without their consent. In an opinion issued on June 23, 2017, U.S. District
Judge Anna Brown, who presided over this action until she took senior status in 2018, granted
certification of a class consisting of:
All individuals in the United States who received a telephone call
made by or on behalf of ViSalus: (1) promoting ViSalus’s products
or services; (2) where such call featured an artificial or prerecorded
voice; and (3) where neither ViSalus nor its agents had any current
record of prior express written consent to place such call at the
time such call was made.
ECF 81 at 6.
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The case proceeded to a three-day jury trial. At trial, the jury received evidence about
ViSalus’s Progressive Outreach Manager (“POM”) system that ViSalus’s outbound marketing
department used to automatically make telephone calls. The jury heard prerecorded messages
promoting ViSalus’ products and saw spreadsheets documenting the results of each calling
campaign as recorded by the POM system’s disposition codes. The jury saw the forms filled out
by all individual members who signed up to be promoters or customers of ViSalus— forms that
asked for either a home telephone number or a mobile telephone number and contained no
provision for giving consent to receive automated or prerecorded telephone marketing calls. The
jury heard testimony from Ms. Wakefield, the named plaintiff, and heard how she had signed up
to be a promoter with ViSalus and shortly thereafter cancelled her membership but continued to
receive telephone calls and voicemails promoting ViSalus products. The jury also heard from
Ms. Wakefield that she runs an informal daycare business out of her home watching the children
of a few of her husband’s coworkers but does not use her home telephone to conduct any
business related to her daycare work.
On April 12, 2019, the jury returned a special verdict, finding that (1) Ms. Wakefield had
proven by a preponderance of the evidence that ViSalus made or initiated four telemarketing
calls using an artificial or prerecorded voice to a residential telephone line (residential landline)
belonging or registered to Ms. Wakefield in violation of the TCPA and (2) that Plaintiff, as class
representative, had proven by a preponderance of the evidence that ViSalus made or initiated
1,850,436 telemarketing calls using an artificial or prerecorded voice to either (a) a mobile
(cellular) telephone or (b) a residential telephone line (residential landline), belonging or
registered to one or more class members, other than Ms. Wakefield, in violation of the TCPA.
ECF 282. The jury also concluded that it could not tell from the evidence presented exactly how
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many of the 1,850,436 violative calls were specifically made to cellular phones or to landlines.
ECF 282. In other words, the jury found that a total of 1,850,436 violative calls were made to
either cell phones or landlines, but could not be more precise as to how many calls were made to
each.
In 2012, the Federal Communications Commission (“FCC”) issued a rule requiring that
all requests for a consumer’s written consent to receive telemarketing robocalls must include the
telephone number that the consumer authorizes may be called with telemarketing messages, and
clear and conspicuous disclosures informing the consumer that: (1) the consumer authorizes the
seller to deliver telemarketing calls to that number using an automatic telephone dialing system
or an artificial or prerecorded voice; and (2) the consumer is not required, directly or indirectly,
to provide written consent as a condition of purchasing any property, goods, or services. See
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 27 FCC
Rcd. 1830, 1833 ¶ 7 (2012).
Promptly after the effective date of the new rule (October 16, 2013), two companies
petitioned the FCC for a retroactive waiver of the new written consent requirements. These
companies previously had obtained written consent from consumers, but the consent obtained
did not meet the more demanding requirements set out in the new rule. In 2015, the FCC issued a
declaratory ruling granting a retroactive waiver to those companies and allowing them to rely on
previously obtained written consents for a limited period of time. See In the Matter of Rules and
Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd. 7961
(2015). In reaching its decision, the FCC concluded that there was evidence in the record that the
petitioners could have been reasonably confused as to whether their previously obtained written
consents would remain valid after the new rule became effective. The 2015 declaratory ruling
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granted the companies a grace period through October 7, 2015 to come into compliance with the
more demanding written consent requirements in the new rule. After October 7, 2015, the
petitioners were required to come into full compliance with the new rule. The FCC also granted
waivers to seven additional petitioners who demonstrated that they were similarly situated to the
first two petitioners.
On September 14, 2017, nearly two years after Plaintiff filed her complaint and the FCC
granted its first retroactive waiver, ViSalus petitioned the FCC for a retroactive waiver of the
express written consent requirements created by the 2012 FCC rule. On June 13, 2019, nearly
two months after the jury returned its verdict, the FCC granted ViSalus’s petition for retroactive
waiver but only as it applied to “calls for which the petitioner had obtained some form of written
consent.” ECF 321-1 at 2 (FCC Order) (emphasis in original).
DISCUSSION
ViSalus argues that the FCC’s retroactive waiver given to ViSalus requires the Court to
decertify the class because in light of the FCC waiver, the named Plaintiff lacks standing and
consent becomes an individualized issue that predominates over class-wide issues. ViSalus also
makes several arguments challenging the propriety of class certification not based on the FCC
order, which can largely be grouped into six categories. First, ViSalus argues there are
insufficient questions of law or fact common to the class and those common questions do not
predominate over questions affecting only individual members. Second, ViSalus argues that the
class is unmanageable because it will be too difficult to determine which class members heard
which messages, and that a class action is not superior because it is procedurally unfair to
ViSalus. Third, ViSalus argues that the class lacks numerosity because Plaintiff did not introduce
evidence showing how many individuals both received and heard a prerecorded telemarketing
message. Fourth, ViSalus argues that Ms. Wakefield’s claims are not typical of the class. Fifth,
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ViSalus argues that Ms. Wakefield is not an adequate class representative. Finally and sixth,
ViSalus argues that the class, as certified, constituted an impermissible “fail-safe” class.
A. FCC Retroactive Waiver
On June 13, 2019, eight weeks after the jury returned its verdict, the FCC granted
ViSalus a retroactive waiver from the 2012 express written consent requirements. The waiver,
however, only applies to “calls for which the petitioner had obtained some form of written
consent.” ECF 321-1 at 2 (emphasis in original). In TCPA litigation, consent is an affirmative
defense. See Van Patten v. Vertical Fitness Grp., 847 F.3d 1037, 1044 (9th Cir. 2017). ViSalus
did not plead consent as an affirmative defense in its answer. Further, throughout this litigation,
ViSalus has disclaimed any reliance on consent as a defense to liability:
To expedite the pretrial issues before the Court, ViSalus represents
that it does not intend to present evidence at trial that Plaintiff,
individually, provided “prior express invitation or permission” to
receive the subject telephone calls for purposes of 47 U.S.C. §
227(a)(4). . . . ViSalus did not in the Motion assert that it would
present evidence of Plaintiff’s or the class’s “prior express written
consent” under 47 C.F.R. § 64.1200(a)(2)-(3). . . . To set the record
clear, ViSalus . . . does not claim that for Count II, Plaintiff’s or
the class’s claims are barred by them giving ViSalus prior express
written consent under 47 C.F.R. § 64.1200(a)(2)-(3).
ECF 145 at 2 (filed July 27, 2018). ViSalus did not plead as an affirmative defense that it
obtained written consent for the calls in a manner consistent with the FCC waiver that it sought.
The FCC has emphasized in each retroactive waiver that it has granted that “these waivers do not
apply to calls for which there was not some form of written consent previously obtained prior to
the 2012 rule change.” ECF 321-1 at 6 (emphasis in original). Written consent obtained after the
2012 rule change became effective on October 16, 2013 must still meet the more stringent
express written consent requirements. In addition, any calls made after October 7, 2015 must
comply with the express written consent requirements stated in the 2012 rule. Thus, the FCC
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waiver does not apply to any consents obtained after October 16, 2013 or any calls made after
October 7, 2015.
Although ViSalus knew that it had applied for a retroactive waiver from the FCC as early
as September 2017, and knew that the FCC previously had granted waivers to many petitioners
similarly situated to ViSalus, ViSalus did not plead consent as an affirmative defense, the parties
did not conduct discovery on the issue of consent, and consent was not at issue in the jury trial.
Before the 2012 rule, callers met the express consent requirements merely by asking
consumers to provide a telephone number. But the retroactive waiver does not apply to all
consents obtained before the 2015 rule change; it only applies to written consent. The FCC’s
order does not address whether any phone numbers obtained in writing, and not orally, satisfy
the criteria for the retroactive waiver.1
For nearly two years now, ViSalus has known that it petitioned the FCC for a retroactive
waiver, yet ViSalus decided to forego any argument or development of the record on what the
consequences would be if the FCC ultimately granted Visalus’s request. Relatedly, ViSalus
never asked to stay the litigation pending the FCC’s ruling on ViSalus’s petition. Throughout
this litigation, ViSalus has expressly disclaimed and in no uncertain terms waived any
affirmative defense of consent. It now, however, asks the Court to find after the jury’s verdict
that ViSalus obtained written consent from class members, thereby exempting it from liability
Although ViSalus argues that it obtained “prior express written consent from consumers
to call them with marketing messages under the ‘old’ prior express consent rules,” ECF 177-1 at
8 (ViSalus’s FCC Petition), it is not clear that asking for a phone number in writing and
providing consumers an option to check “none” when asked how they preferred to be contacted
(as ViSalus’s forms do) would constitute “written consent.” ViSalus has submitted a declaration
from its Chief Operating Officer, Aldo Moreno, who states that it would now be impossible to
determine whether class members checked boxes indicating that they gave ViSalus permission to
contact them. ECF 330 at 2.
1
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under the FCC’s retroactive waiver. At this late stage, the Court declines to delve into the factual
dispute surrounding whether ViSalus obtained written consent from class members.
Plaintiff argues that ViSalus has waived the affirmative defense of consent. An exception
to the general rule of waiver exists when there has been an intervening change in the law
recognizing an issue or a defense that was previously not available. Big Horn Cty. Elec. Co-op v.
Adams, 219 F.3d 944, 953 (9th Cir. 2000). “The intervening-change-in-law exception to our
normal waiver rules . . . exists to protect those who, despite due diligence, fail to prophesy a
reversal of established adverse precedent.” GenCorp, Inc., v. Olin Corp., 477 F.3d 368, 374 (6th
Cir. 2007). Parties are excused from waiver only when there is an intervening change in the law
and there was strong precedent before the change such that the failure to raise the issue was not
unreasonable and the opposing party was not prejudiced by the failure to raise the issue sooner.
See Curtis Pub. Co. v. Butts, 388 U.S. 130, 144 (1967)); Huerta-Guevara v. Ashcroft, 321 F.3d
883, 886 (9th Cir. 2003). Courts do not require parties to read “the handwriting on the wall.” Id.
at 143.
This exception does not excuse ViSalus’s failure to raise the issue sooner. ViSalus was
not diligent when it failed to raise the consent defense earlier, with full knowledge that its
application with the FCC was pending. Had ViSalus been diligent, the Court would have had the
advantage of a developed record on the issue of whether ViSalus obtained written consent. The
relevant precedent, here the FCC’s previous orders granting waivers to at least nine similarly
situated petitioners, foreshadowed the FCC’s decision to grant ViSalus’s petition such that
ViSalus was not taken by surprise when its petition was granted. This was not an instance in
which a court, or, in this case, an agency, deviated from longstanding precedent in creating new
law. Rather, the FCC, consistent with its string of nine prior waivers, granted ViSalus’s petition
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for waiver just as ViSalus requested. ViSalus got exactly what it asked for. Its failure to raise the
consent issue given the likelihood that the FCC would grant its waiver petition was
unreasonable, and Plaintiff would be unfairly prejudiced by being denied the opportunity to take
discovery on the issue of consent and argue to the jury why ViSalus did not, in fact, obtain
written consent. Knowing that the FCC waiver petition was pending, ViSalus could have made
arguments contemplating the scenario in which its petition was granted. It chose not to do so and
has thus waived the affirmative defense of consent.
ViSalus also also could have prepared for what it would do in the event its petition was
granted. The parties could have engaged in discovery on the question of whether ViSalus
obtained consent in written form, the jury could have been asked to determine whether any
consent given was in written form, how many of those written consents were obtained before
October 16, 2013, and how many otherwise violative calls were made after October 7, 2015. The
Court holds that ViSalus has waived reliance on the affirmative defense that it obtained prior
written consent from class members and will not consider the FCC’s recent order as a basis to
decertify the class.
B. Commonality and Predominance
ViSalus argues that the class fails to meet the commonality requirement and that
individualized issues predominate, and thus certification is improper under Rules 23(a)(2) and
(b)(3). The Court will, like the parties in their briefing, analyze these two requirements together.
ViSalus highlights four specific areas where it contends that individualized inquiries
dominate: (1) whether class members were called on residential landlines or mobile (cellular)
telephones, (2) whether each call involved a telemarketing prerecorded message, (3) whether the
message actually played, and (4) whether absent class members suffered any actual harm
because some may have subjectively consented to receiving calls. “All questions of fact and law
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need not be common to satisfy the commonality requirement. The existence of shared legal
issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled
with disparate legal remedies within the class.” Meyer v. Portfolio Recovery Assocs., 707 F.3d
1036, 1041 (9th Cir. 2012) (alterations omitted) (quoting Hanlon v. Chrysler Corp., 150 F.3d
1011, 1019 (9th Cir. 1998)).
Some of ViSalus’s arguments implicitly challenge whether a TCPA case can ever be
properly certified as a class, because ViSalus argues that TCPA liability must depend on which
specific message each class member received, whether the class member actually listened to the
message, and whether the class member suffered actual damages. To the contrary, many courts
have concluded that there are many common questions of law and fact inherent in TCPA cases.
As described in another TCPA class certification case, the common issues include
[w]hether Defendants used a prerecorded voice to make the calls at
issue; . . . whether the calls were telemarketing calls; whether the
class members provided express, written consent to receive the
calls; and whether Plaintiff and class members are entitled to
damages under the TCPA.
Fisher v. MJ Christensen Jewelers, 2018 WL 1175215, at *4 (D. Nv. Mar. 6, 2018).
1. Type of Telephone Called
Turning to ViSalus’s first argument, the Court does not agree that individualized issues
associated with determining whether a particular class member was called on a residential
landline or a cellular telephone prevent class certification. Under the TCPA, liability attaches to
any call made either to a residential landline or to a cellular telephone, so ViSalus would be
equally liable for calls made to either kind of telephone. See 47 U.S.C. § 227(b)(1). Similarly, the
statutory damages do not differentiate between calls made to residential landlines and cellular
telephones. See id. § 227(b)(3). The jury returned a special verdict finding that all class members
were called on either a residential landline or a cellular telephone. Although the jury reported
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that it could not tell how many calls were placed to each type of telephone, that further
distinction is not relevant.
ViSalus further argues that individualized issues predominate in determining whether a
landline is primarily used for business or residential purposes. ViSalus points to Ms. Wakefield’s
trial testimony about her informal home daycare business as an example of exactly how
individualized these findings can be. The jury saw the sign-up forms that ViSalus used to collect
telephone numbers, which ask only for a home phone number or a mobile phone number. See
ECF 316-8 at 2. Plaintiff argued that the jury should make the reasonable inference that people
filling out those forms responded truthfully and provided only, as requested, a home telephone
number or a cellular telephone number and not a business number. Ms. Wakefield testified that
she too responded truthfully to this form and provided a phone number used primarily for
residential purposes, and the jury found Ms. Wakefield’s testimony credible. The jury could read
the sign-up forms to provide common proof that all class members provided either a residential
telephone number or a mobile telephone number and ViSalus has only speculated that some class
members might have used their home telephone lines for primarily business purposes.
For class members called on their mobile phones, no additional fact-finding could
possibly affect ViSalus’s liability. For those class members called on their home telephones who
also run a business out of their home, some additional fact-finding may be necessary before a
specific potential class member may recover. But ViSalus does not identify any absent class
members whom it contends use their home telephone number primarily for business purposes.
And even if some class members did occasionally use home phone numbers for business,
“[w]hen ‘one or more of the central issues in the action are common to the class and can be said
to predominate, the action may be considered proper under Rule 23(b)(3) even though other
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important matters will have to be tried separately, such as . . . some affirmative defenses peculiar
to some individual class members.’” True Health Chiropractic, Inc., v. McKesson Corp., 896
F.3d 923, 931 (9th Cir. 2018) (quoting Tyson Foods, Inc., 136 S. Ct. at 1045).
Additionally, at trial, Plaintiff’s witness Mr. Davis testified that he searched the 406 POM
spreadsheets ViSalus produced for common business firm designations and removed any
columns of data that appeared to be linked to businesses. ECF 316-1 at 45. He testified that he
removed about 6,000 lines of data that he believed were linked to businesses and not residential
telephone lines. ECF 316-1 at 45. From this information, the jury could reasonably infer that the
remaining telephone numbers in the POM spreadsheets were more likely than not either home
telephone numbers or mobile telephone numbers. The jury concluded based on this evidence that
more than 1.8 million phone calls were made to either residential landlines or cellular
telephones.2 This Court will not disturb the jury’s finding that a preponderance of the evidence
supported the inference that 1.8 million phone calls were made to telephone lines that were either
residential or cellular. And, because the TCPA makes a caller equally liable for calls to both
cellular telephones and residential landlines, it does not affect ViSalus’s liability that the jury
could not determine the number of calls made to each type of telephone. See 47 U.S.C.
§ 227(b)(1).
2
The Court separated calls to landlines and calls to cellular telephones on the verdict
form to keep the record clear for post-trial briefing and appeal on the issue of whether Plaintiff
had adequately proven whether a landline was used for business or residential purposes. The
Court’s decision to ask the jury to determine the number of calls made to cellular telephones
(where it does not matter if the telephone was used for business purposes) and landlines (where it
does) on the verdict form reflected no opinion of the Court on the sufficiency of Plaintiff’s
evidence.
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2. Telemarketing Messages
ViSalus next argues that individual questions predominate over whether each prerecorded
message was a “telemarketing” message under the TCPA. But all 406 calling campaign
spreadsheets produced by ViSalus and used at trial were ones that it had identified as involving
telemarketing messages within the definition of the TCPA. See ECF 316-12 at 2. The Court
instructed the jury on what constitutes a telemarketing message and ViSalus does not, at this
stage, argue that the jury instructions were erroneous. The jury listened to many of the
prerecorded messages at trial and concluded that they met the definition of telemarketing.
Although ViSalus argues that some of its outbound calling campaigns involved nonmarketing messages, it did not produce any evidence of non-marketing messages at trial. The
non-marketing calling campaigns (such as declined credit card calls) were not included in the
406 calling campaign spreadsheets introduced at trial, those messages were not played for the
jury, and the jury did not rely on them in reaching its verdict. See ECF 316-12. At trial, the jury
listened to many, but not all, of ViSalus prerecorded messages, and the jurors were entitled to
infer that those messages were representative of all the messages used in the marketing
campaigns documented in the 406 calling campaign spreadsheets. If ViSalus wanted to refute
that inference, it could have played a message for the jury that did not meet the TCPA definition
of a marketing message or pointed out which of the 406 marketing calling campaigns it believed
did not meet the TCPA’s definition of telemarketing. ViSalus offered no evidence at trial to
suggest that some of the calling campaigns at issue were not marketing campaigns such that
individual issues of whether class members received marketing calls predominate.
3. Artificial or Prerecorded Voice
ViSalus is incorrect in its characterization of the requirement that a class member must
actually hear the message play for liability to attach under the TCPA. As this Court stated in its
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previous order, and in the jury instructions, the requirement is that the message actually play, not
that anybody hear it. See ECF 136, 149. This can be satisfied if the prerecorded message is left
on a voicemail, for example, and the Court need not inquire at this stage whether each individual
class member actually listened to the voicemail.
Although whether the message actually played is a question that must be decided on an
individualized basis, the spreadsheets documenting the outcome of each call provided an easily
manageable answer to this question. The jury could count the disposition codes documenting that
a message actually played and use that number to estimate the number of calls. Indeed, it seems
highly likely that this is the method that the jury used to find the number of phone calls.
ViSalus’s witnesses looked to disposition codes for information about what could have happened
on each call, see ECF 307-12 at 2; ECF 307-4 at 61, Plaintiff’s witness calculated the total
number of calls with each disposition code in Trial Exhibit 36A, and the jury had access to the
POM manual, which explained the meaning of each disposition code. At trial, both parties
argued to the jury that it should look at the POM spreadsheets and disposition codes in reaching
its verdict.
4. Subjective Consent
Finally, ViSalus’s fourth argument, that individualized issues regarding consent compel
decertification, without merit. At trial, ViSalus did not dispute that it lacked legal consent for the
calls. Under the TCPA, a plaintiff need not show actual injury or actual damages to prevail. See
Van Patten, 847 F.3d at 1043. ViSalus argues that, although class members might not have given
legally adequate consent to receive its telemarketing messages, some of the class members may
have nonetheless wanted to receive those calls and thus have suffered no injury. The harm that
the TCPA protects against is the harm of being called without first giving prior express written
consent, and as the Ninth Circuit has made clear, a plaintiff alleging a violation of the TCPA
PAGE 16 – OPINION AND ORDER
“need not allege any additional harm beyond the one Congress has identified.” Van Patten, 847
F.3d at 1043 (quoting Spokeo v. Robins, 136 S. Ct. 1540, 1549 (2016)); accord Meyer, 707 F.3d
at 1045 (“We agree with [plaintiff] that [defendant’s] violation of the TCPA violated his right to
privacy, an interest the TCPA intended to protect.”).
In the Ninth Circuit, consent is an affirmative defense, Van Patten, 837 F.3d at 1044, and
although a plaintiff bears the burden of showing the class satisfies the certification requirements
of Rule 23, the burden of proving consent fell on ViSalus at trial. Therefore, the Court assesses
“predominance by analyzing the consent defenses [a defendant] has actually advanced and for
which it has presented evidence.” True Health Chiropractic, 896 F.3d at 932 (refusing to
consider “speculation and surmise”). ViSalus has provided no evidence that the class contained
any members who consented, legally or subjectively, to receiving prerecorded telemarketing
calls from ViSalus. See Meyer, 707 F.3d at 1042 (finding individualized issues of consent did not
predominate because defendant “did not show a single instance where express consent was given
before the call was placed”). Because Visalus did not dispute that it failed to obtain prior express
written consent from any class member, consent is not an individualized issue, but instead one
that can easily be answered on a class-wide basis. See True Health Chiropractic, 896 F.3d at 932
(holding that, where lack of legally adequate consent under TCPA was ascertainable simply by
examining forms filled out by all class members, Rule 23(b)(3) predominance requirement was
satisfied).
C. Manageability and Superiority
ViSalus also argues that the class is unmanageable because it will be impossible to
determine which class members heard which messages, and class members are unlikely to
remember whether they received a call from ViSalus years ago, which could make administering
the class more difficult. ViSalus argues that the class members who actually listened to its calls
PAGE 17 – OPINION AND ORDER
would be too difficult to identify. But the Ninth Circuit has made clear there is no
ascertainability prerequisite to class certification under Rule 23. See Briseno v. ConAgra Foods,
Inc., 844 F.3d 1121, 1133 (9th Cir. 2017). The Court notes that ViSalus appears to have kept
good records of who was called in each calling campaign through the POM records, and feasible
methods exist to determine which class members received phone calls. See, e.g., Booth v.
Appstack, Inc., 2016 WL 3030256, at *8 (W.D. Wa. May 25, 2016) (finding “whether
confirmation of TCPA Class members is performed via sworn self-identification, review of
specific phone records, or another method, minimal individualized inquiry is required”). It is
irrelevant for the purposes of liability which specific marketing message each class member
received, so long as the message was a marketing one. And although ViSalus raises concerns
with the manageability of the class throughout litigation and trial, the Court has encountered no
difficulties managing the class, up to and including trial.
ViSalus also argues that superiority is not met because it would be procedurally unfair to
put a company out of business without proof of actual harm. Under ViSalus’s argument, a class
action is not superior to other methods of adjudication because it would result in such a large
damage award that ViSalus would be forced to go out of business. Although the statutory
damages are high, the damages were computed based on the number of violative calls that the
jury found ViSalus made and the statutory damages that Congress considered appropriate. The
Ninth Circuit has held that “[t]o limit class availability merely on the basis of ‘enormous’
potential liability that Congress explicitly provided for would subvert congressional intent.”
Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 723 (9th Cir. 2010). Had the jury found
ViSalus’s unlawful conduct to be less extensive, the damages would have been lower. ViSalus
has not asked this Court for a remitter, or to reduce the award if it is unconstitutionally excessive,
PAGE 18 – OPINION AND ORDER
nor is a motion to decertify the proper vehicle to make such a request. Given the potential
number of class members (perhaps as high as 800,000), a class action is a superior method for
adjudicating hundreds of thousands of individual claims.
D. Numerosity
ViSalus argues that there is no reliable evidence establishing a reasonable estimate of the
number of individuals who both received and heard a telemarketing message, and so it is
impossible to determine whether the class meets this Court’s numerosity requirements. As
discussed above, the Court has already held that the TCPA only requires that a message play, and
it does not require, at the class certification stage, proof that every class member actually heard
it. See also ECF 136. The jury concluded that more than 1.8 million automated telemarketing
messages played. This Court, as a “rough rule of thumb” requires about 40 class members in
order to satisfy the numerosity requirement. See Or. Laborers-Emp’rs Health & Welfare Tr.
Fund v. Philip Morris, Inc., 188 F.R.D. 365, 372 (D. Or. 1998). Although the exact number of
class members not precisely known, the Court finds that a preponderance of the evidence
establishes that the class contains far more than 40 individuals.
E. Typicality
ViSalus argues that Ms. Wakefield’s claims are not typical of the class. In pursuit of this
argument, ViSalus attempts to subdivide this class into many subclasses, for whom it contends
Ms. Wakefield’s claim is not typical of the sub-class. See ECF 306 at 30 (arguing that Ms.
Wakefield is not representative of class members who subjectively wanted to receive phone calls
from ViSalus, is not representative of class members who were successful promoters because she
never sold any ViSalus products, is not representative of customers because she was a promoter,
and is not representative of class members who were called on business lines or who never
received telemarketing messages at all). “[R]epresentative claims are ‘typical’ if they are
PAGE 19 – OPINION AND ORDER
reasonably co-extensive with those of absent class members; they need not be substantially
identical.” Marlo, 707 F.3d at 1042 (quoting Hanlon, 150 F.3d at 1020). And “even a welldefined class may inevitably contain some individuals who have suffered no harm as a result of a
defendant’s unlawful conduct.” Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1136 (9th Cir.
2016). Thus, even if the class includes some individuals who received calls from ViSalus on a
business line or who received a call from ViSalus but no prerecorded message ever played, this
fact alone does not render certification improper. Id.
Ms. Wakefield’s claims are typical of the class because she received an automated or
prerecorded telemarketing message from ViSalus without giving prior express written consent.
The injury she suffered, the invasion of privacy caused by a telemarketing robocall, is coextensive with the injuries that absent class members suffered and is not different in kind than
the injury suffered by other class members.
F. Adequacy of Representation
ViSalus further argues that Ms. Wakefield was not an adequate class representative
because, as a disgruntled former promoter, her interests were adverse to the interests of absent
class members who feel favorably about ViSalus and its products and would not want ViSalus to
be put out of business by a large damage award. ViSalus, however, has presented no evidence
that any absent class members feel so warmly about ViSalus. Furthermore, most of the violative
calls at issue were made as part of a “Winback campaign.” Only customers or promoters who
had not placed an order “within the last 90 days” were “eligible” to be called during the Winback
campaign. ECF 307-13 at 2. Thus, any class member who was called as part of the Winback
campaign was likely not a hypothetical absent class member “whose livelihood depends on the
company’s continued operations.” ECF 306 at 41. This does not provide a basis for decertifying
the class.
PAGE 20 – OPINION AND ORDER
G. Fail-Safe
Lastly, ViSalus argues that the class should have never been certified because it is an
impermissible “fail-safe” class. A “fail-safe” class is “one that is defined so narrowly as to
‘preclude[] membership unless the liability of the defendant is established.” Torres, 835 F.3d at
1138 n.7 (quoting Kamar v. RadioShack Corp., 375 F. App’x 734, 736 (9th Cir. 2010)). “As a
result, we require no more than a reasonably close fit between the class definition and the chosen
theory of liability.” Id. In this class action, class was defined as:
All individuals in the United States who received a telephone call
made by or on behalf of ViSalus: (1) promoting ViSalus’s products
or services; (2) where such call featured an artificial or prerecorded
voice; and (3) where neither ViSalus nor its agents had any current
record of prior express written consent to place such a call at the
time such call was made.
ECF 81 at 6. The class definition does not overlap perfectly with the chosen theory of liability
because (1) the class includes phone calls made to business landlines, (2) the class includes calls
where an artificial or prerecorded voice never actually played, and (3) the class includes calls
that might not meet the definition of “telemarketing” under the TCPA. At trial, to establish
liability, Plaintiff had to prove that the calls met the TCPA’s definition of “telemarketing,” that
the calls were made to residential landlines or mobile phones, and that an artificial or
prerecorded voice actually played. The class “definition is not a circular one that determines the
scope of the class only once it is decided that a class member was actually wronged.” Kamar,
375 F. App’x at 736. Thus, whether an individual is a member of the class is independent of
ViSalus’s liability, and the class is not “fail-safe.”
CONCLUSION
After reviewing Defendant’s arguments and the evidence presented at trial, the Court
finds that the class certification was, and remains, proper and meets the requirements of Federal
PAGE 21 – OPINION AND ORDER
Rule of Civil Procedure 23. Defendant’s Motion to Decertify the Class (ECF 306) is DENIED.
Defendant’s Motion to Strike Plaintiff’s Sur-Reply (ECF 342) is also DENIED.
IT IS SO ORDERED.
DATED this 21st day of August, 2019.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 22 – OPINION AND ORDER
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