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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LORI WAKEFIELD, individually and on 

behalf of a class of others similarly situated,

Plaintiffs,

v.

VISALUS, INC.,

Defendant.

Case No. 3:15-cv-1857-SI

ORDER

Michael H. Simon, District Judge.

Plaintiff Lori Wakefield brings two causes of action against defendant Visalus, Inc. The 

first is an individual claim under the general private right of action enforcement provision of the 

Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(c)(5), alleging that Defendant

violated the TCPA’s implementing regulations, specifically 47 C.F.R. § 64.1200(c), by initiating

more than one telemarketing call within a 12-month period to Plaintiff’s landline telephone 

number that had been registered with the National Do Not Call Registry for at least 30 days.

Plaintiff’s second claim is a class claim, alleging that Defendant violated § 227(b)(1)(A)(iii) and 

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(b)(1)(B)1of the TCPA by improperly using an artificial or prerecorded voice in telemarketing 

calls to people’s residential landline or cellular telephones without their prior express consent. 

This case is scheduled for a three-day jury trial beginning on November 6, 2018. On August 21, 

2018, the case was transferred from U.S. District Judge Anna J. Brown to the undersigned

district judge. 

Before the Court are three motions relating to specific jury instructions requested by the 

parties. For the reasons that follow, all three motions are denied. Although the Court will 

complete final jury instructions after further briefing and the Pretrial Conference, the Court 

provides some guidance on its current tentative thinking relating to the three specific jury 

instructions that are the subject of the pending motions. 

A. Defendant’s Motion Regarding “Residential” Jury Instruction

Defendant moves for a jury instruction on what constitutes a “residential” telephone line 

under the TCPA. Defendant disputes that Plaintiff’s telephone line, as well as other class 

members’ telephone lines, were “residential” under the statute. Defendant argues that because 

Plaintiff used her telephone line, at least for some time, for a home-based business, it was not a 

residential line. Plaintiff informally provided day care for three to four children over the course 

of 11 years, gave her phone number to about 11 parents, and charged and received compensation 

for that day care service, although it was not licensed.

The FCC has declined to promulgate regulations that exempt from the do-not-call rules 

those calls made to “home-based businesses.” RULES AND REGULATIONS IMPLEMENTING THE 

 

1 Although Plaintiff’s First Amended Complaint references only 47 U.S.C. 

§ (b)(1)(A)(iii) in the Second Cause of Action, Plaintiff and ViSalus’s Joint Proposed Pretrial 

Order also includes (b)(1)(B) when discussing Plaintiff’s class claim. Further, the parties’ 

briefing on the pending motions presumes that Plaintiff’s class claim includes both (b)(1)(A)(iii) 

and (b)(1)(B) allegations. The Court thus considers Plaintiff’s class claim to assert allegations 

under both 47 U.S.C. § (b)(1)(A)(iii) and (b)(1)(B).

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TELEPHONE CONSUMER PROTECTION ACT OF 1991, 70 Fed. Reg. 19,330, 19,331 (April 13, 2005). 

With respect to “home-based businesses,” the FCC has only stated that it would “review such 

calls as they are brought to [its] attention to determine whether or not the call was made to a 

residential subscriber.” Id.

In Bank v. Independence Energy Group LLC, the Eastern District of New York denied 

the defendant’s motion to dismiss on the ground there was insufficient evidence to determine 

whether the telephone line at issue was “residential” for purposes of the TCPA. 2014 

WL 4954618, at *4 (E.D. N.Y, Oct. 2, 2014). The court noted that whether a telephone line is 

registered with the telephone company as “residential” is a good starting point to determine 

whether the line qualified as “residential.” Id. at *3. The court, however, rejected any “bright 

line” test, stating

if the subscriber holds out such a telephone number to the general 

public as a business line, the line should not be considered 

“residential” for the purposes of the TCPA—even if it is registered

as “residential” with the telephone company. This more nuanced 

approach to the phrase “residential telephone line” better comports 

with Congress’s intent in enacting the TCPA and with common 

sense.

* * *

A telephone subscriber who registers a line with the telephone 

company as a residential line but then lists the number in the 

Yellow Pages and other directories as a business line sacrifices the 

protections afforded by the TCPA.

Id. at *3-4.

Similarly, in Southwell v. Mortgage Investors Corp. of Ohio, Inc., U.S. District Judge 

Pechman in the Western District of Washington denied the defendant’s motion for summary 

judgment. 2014 WL 4057166, at *3 (W.D. Wash., Aug. 14, 2014). The court concluded that the 

plaintiff was a “residential telephone subscriber” under the TCPA, even though the plaintiff’s 

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wife testified that the plaintiff at times used his cell phone to sell sheep to his friends. Id. The 

court noted that the defendant did not establish that the farm was incorporated as any kind of 

business entity or that the plaintiff earned any profit from the farm. Id.

Defendant asserts that the burden is on Plaintiff to prove by a preponderance of the 

evidence that the subject telephone line was residential. The Court agrees. It is one of the 

statutory elements of 47 U.S.C. § 227(b)(1)(B) that Plaintiff must prove. The Court will consider 

whether the allocation of the burden of proof needs to be an express part of a specific 

“residential” jury instruction in the context of the full set of final jury instructions.

As for the specific definition of “residential,” the Court finds that a telephone line is 

residential if the phone is primarily used for residential purposes. On the other hand, if the phone 

is held out to the public as a business number, then the protections of the TCPA are forfeited. 

Thus, the Court’s tentative analysis on a “Residential Telephone Line” jury instruction is:

I have previously instructed you regarding prohibitions under the 

TCPA relating to a “residential telephone line” and to a 

“residential telephone subscriber.” This prohibition applies both to 

landlines and cellular telephone numbers, but does not apply to 

calls made to businesses. The parties agree Plaintiff’s telephone 

number was a landline, but disagree whether it was a “residential”

telephone line. You must decide this issue based on the evidence 

presented.

In deciding this issue, you must give the word “residential” it usual 

and ordinary meaning. You may consider whether the number was 

registered as a residential number or a business number. You may 

also consider whether the number was publicized or held out to the 

general public as a business number, even if it was registered as a 

residential number. The fact that a telephone number is used for 

some business calls does not necessarily make it a business 

telephone number, so long as it is used primarily as a residential 

number

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B. Plaintiff’s Motion on “Initiated” versus “Received” or “Heard”

Plaintiff moves for a jury instruction that she need only prove that Defendant initiated a 

call, not that Plaintiff actually heard an artificial or prerecorded voice or that a message was left.2

Plaintiff cites the statutory text of the two relevant provisions of 47 U.S.C. § 227(b)(1). First, 

Plaintiff argues that § 227(b)(1)(A)(iii) only requires that Defendant “make any call . . . using . . . 

an artificial or prerecorded voice,” and making a call does not require that the call be heard or a 

message left. Next, she argues that § 227(b)(1)(B) only requires that Defendant “initiate any 

telephone call to any residential telephone line using an artificial or prerecorded voice to deliver 

a message,” and the plain text of the phrase “initiate any telephone call” does not require that a

voice be “heard” or a message actually be delivered. 

Defendant responds that using an artificial voice in § 227(b)(1)(A)(iii) requires the voice 

actually be used, which means it must speak, which means someone must answer the phone or a 

message must be left. Defendant also argues that Plaintiff’s interpretation ignores the part of 

§ 227(b)(1)(B) that requires that the artificial voice is being used to deliver a message, which 

again requires that the voice be used and also requires that the message be delivered. Defendant 

further argues that this precise question was addressed by the Fifth Circuit in Ybarra v. Dish 

Network, LLC, 807 F.3d 635, 641 (5h Cir. 2015). The court in Ybarra explained: 

To be liable under the “artificial or prerecorded voice” section of 

the TCPA, we conclude that a defendant must make a call and an 

artificial or prerecorded voice must actually play. A couple of 

considerations compel this conclusion. First, under traditional rules 

 

2 When Plaintiff requested certification of the class based on her Second Cause of Action, 

Plaintiff requested, and the Court adopted, a class defined as all persons who “received” certain

calls. The “receipt” of a call is a requirement under 47 U.S.C. § 227(c)(5) and Plaintiff’s First 

Cause of Action, but is not required under 47 U.S.C. § 227(b) and Plaintiff’s Second Cause of 

Action. Plaintiff does not discuss the class definition in her briefing on how the Court should 

instruct the jury on Plaintiff’s class claim, but instead focuses on the statutory elements, which 

do not require receipt of a call. 

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of statutory interpretation, we “look at the plain meaning of the 

statutory language.” United States v. Spurlin, 664 F.3d 954, 964 

(5th Cir. 2011). In the context of the TCPA, the word “using” is 

best interpreted as meaning the artificial voice “spoke.” That the 

prerecorded voice was on standby as the call was placed is not 

sufficient when the statute requires that the voice be “used.”

Second, the TCPA makes it unlawful to make any call using an 

“automatic telephone dialing system.” In contrast, it is not 

unlawful under the TCPA to make a call using an artificial or 

prerecorded voice system. Rather, what is precluded by the TCPA 

is making a call using “an artificial or prerecorded voice.” The 

omission of the word “system” must be given effect. See Burnett 

Ranches, Ltd. v. United States, 753 F.3d 143, 148 (5th Cir. 2014). 

Id. at 640-41. The Fifth Circuit then concluded:

We hold that making a call in which a prerecorded voice might, 

but does not, play is not a violation of the TCPA. Instead, the 

prerecorded voice must “speak” during the call. A party who 

makes a call using an automatic telephone dialing system uses the 

system to make the call, regardless of whether the recipient 

answers, and thereby triggers TCPA liability. With a prerecorded 

voice, though, unless the recipient answers, an artificial or 

prerecorded voice is never used. 

Id. at 641. The Court finds this reasoning persuasive. 

The Court’s tentative analysis is that the jury instruction relating to Plaintiff’s class claim 

must include some statement to the following effect:

To be liable under the “artificial or prerecorded voice” section of 

the TCPA, Plaintiff must prove that Defendant made a call and 

used an artificial or prerecorded voice, or initiated a call and used 

an artificial or prerecorded voice to play a message. A call “used” 

an artificial or prerecorded voice if the message actually began to 

play or the prerecorded or artificial voice began to speak. A call 

that was intended to use an artificial or prerecorded voice but the

voice never spoke or the message never played is not a violation of 

the TCPA.

C. Defendant’s Motion Regarding Class Actions and Nature of Proof

Defendant asserts that Plaintiff must prove the elements of the class claim as to each 

individual member of the class. Defendant requests a jury instruction that includes a section 

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instructing the jury that Plaintiff must prove “that each and every class member satisfies each 

element of this Count II. You may not find in favor of an absent class member unless you are 

convinced by a preponderance of the evidence that the class member satisfies the elements of his 

or her claim.” Defendant argues that issues such as whether the telephone called was a residential 

or cellular line cannot be proven classwide simply by Plaintiff proving that her telephone was a 

residential line.

Plaintiff responds that when the Court certified the class action, the claim was considered

to have class issues that predominate. Plaintiff argues that Defendant is essentially re-litigating 

class certification. Plaintiff also notes that classes may be overinclusive, and that it is 

commonplace to have an involved post-trial claims process, even including one that requires an 

affidavit by class members to prove their eligibility, such as attesting that their telephone 

numbers are cellular or residential. 

Defendant had the opportunity to challenge Plaintiff as a class representative and to 

challenge class certification. At trial, Plaintiff must prove every element of her claim to succeed 

on the merits. Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1131 (9th Cir. 2017). After trial, 

Defendant “will have similar opportunities to individually challenge the claims of absent class 

members if and when they file claims for damages.” Id. At this stage of claims processing, 

“parties have long relied on claim administrators, various auditing processes, sampling for fraud 

detection, follow-up notices to explain the claims process, and other techniques tailored by the 

parties and the court to validate claims.” Id. (quotation marks omitted). Indeed, “the need for 

such individualized claim determinations after a finding of liability” is specifically contemplated

by Rule 23 of the Federal Rules of Civil Procedure. Id. (citing Fed. R. Civ. P. 23 advisory 

committee’s note to 1966 amendment as “explaining that certification may be proper ‘despite the 

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need, if liability is found, for separate determinations of the damages suffered by individuals 

within the class’” and Levya v. Medline Indus. Inc., 716 F.3d 510, 513-14 (9th Cir. 2013) as 

reaffirming, after Comcast Corp. v. Behrend, 569 U.S. 27 (2013), “that the need for 

individualized damages determinations after liability has been adjudicated does not preclude 

class certification”).

Defendant argues that the absent class members’ individual adjudication involve more 

than damages determinations. Because the damages are $500 statutory damages per claimant, 

with possible trebling by the Court, a post-trial determination of whether a class member is 

eligible to submit a claim is, for practical purposes, only a damages calculation. If an absent class 

member turns out not to be eligible because that person did not use his or her phone for 

residential purposes, or for some other reason that releases Defendant from liability under the 

TCPA, the result would be that Defendant owes less in total damages.

The Court’s tentative analysis on an appropriate instruction relating to class action claims 

and the nature of proceedings is:

Count II of this lawsuit is a class action claim for violation of the 

TCPA. In a class action claim, one person brings the case as 

plaintiff and acts as the representative in court for all of the class 

members. This is intended to avoid duplication of effort and 

expense from multiple lawsuits asserting the same claim by 

multiple people in different locations. Lori Wakefield is the 

representative of the class in this case. She is representing a class 

of all individuals in the United States who allegedly received a 

telephone call from ViSalus promoting ViSalus’s products or 

services, when the call featured an artificial or prerecorded voice 

and when ViSalus did not have prior express written consent to 

place the call when it was made. 

You should not hold the physical absence of any class member 

from trial against Plaintiff or think of it as a lack of concern or 

interest in the outcome of this litigation. Similarly, the fact that 

Count II is proceeding as a class action claim does not mean any 

decision has been made about the merits of the case. You must 

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make that determination, and I have already instructed you about 

the elements of the claim and the burden of proof.

D. Remaining Issues

The Clerk of the Court is instructed to set a telephone conference with the parties 

reasonably promptly to set a pretrial conference and the deadline for an amended Pretrial Order. 

The Court also, however, invites the parties to consider that Gallion v. Charter Communications, 

Inc., Ninth Circuit Case No. 18-55667, is currently pending before the Ninth Circuit. In that case, 

Charter Communications challenges 47 U.S.C. § 227(b)(1)(A)(iii) as containing an 

unconstitutional content-based restriction in violation of the First Amendment because it allows 

calls to collect government debt while prohibiting other calls. Notably, 47 U.S.C. § 227(b)(1)(B) 

contains the same exception for government debt collection calls. The current briefing schedule 

before the Ninth Circuit has the reply brief due October 22, 2018. Oral argument has not yet 

been scheduled. Other cases involving these TCPA provisions have been stayed pending the 

Ninth Circuit’s decision in Gallion. See, e.g., Fontes v. Time Warner Cable, Inc., Case No. 2:14-

cv-2060-CAS-AS, ECF 107 (C.D. Cal. August 20, 2018) (Order granting motion to stay). The 

Court would like the parties’ views on whether the trial of this case similarly should be stayed.

CONCLUSION

The parties’ motions relating to jury instructions (ECF 128, 129, 132) are DENIED. The 

Court will set a telephone conference to discuss the remaining matters noted in this Order.

IT IS SO ORDERED.

DATED this 24th day of August, 2018.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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