Page 1 - Defendant’s Motion to Stay 

70069238.2 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

Joshua M. Sasaki, P.C., OSB No. 964182

josh.sasaki@millernash.com 

Jonathan H. Singer, OSB No. 105048 

jonathan.singer@millernash.com 

MILLER NASH GRAHAM & DUNN LLP 

3400 U.S. Bancorp Tower 

111 S.W. Fifth Avenue 

Portland, Oregon 97204 

Telephone: 503.224.5858 

Facsimile: 503.224.0155 

Attorneys for Defendant ViSalus, Inc. 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

LORI WAKEFIELD, individually and on 

behalf of all others similarly situated, 

Plaintiff, 

 vs. 

VISALUS, INC., a Nevada corporation, 

Defendant. 

CV No. 3:15-cv-01857-BR 

DEFENDANT’S MOTION TO STAY 

ORAL ARGUMENT REQUESTED 

LR 7-1 CERTIFICATION 

The undersigned counsel certifies that they have made a good faith effort to confer with 

counsel for plaintiff about this motion but have been unable to resolve the matter. 

Case 3:15-cv-01857-BR Document 20 Filed 12/29/15 Page 1 of 8
 

Page 2 - Defendant’s Motion to Stay 

70069238.2 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

MOTION 

Defendant ViSalus, Inc., through undersigned counsel, moves the Court to stay this 

action pending the U.S. Supreme Court’s impending decisions in two pivotal cases that directly 

bear on the disposition of this matter. This Motion is supported by the Memorandum of Points 

and Authorities below. 

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION 

Plaintiff Lori Wakefield (“Plaintiff”) alleges a claim on behalf of herself and two putative 

classes for statutory damages under the Telephone Consumer Protection Act (“TCPA”) based on 

ViSalus or its agents allegedly calling phone numbers on the national Do Not Call registry, and 

allegedly making unsolicited and unwanted telemarketing calls using an artificial or prerecorded 

voice and an automatic telephone dialing system without the called party’s prior express written 

consent. Plaintiff and the putative classes seek statutory damages only. [Dkt. 1 ¶¶ 44, 45, 50, 

51.] 

The Supreme Court is expected to rule in or before June 2016 in Spokeo, Inc. v. Robins1

on whether a plaintiff has standing to allege a bare violation of a statute, without demonstrating 

the particularized injury required for Article III standing. The Court is also expected to rule by 

the end of June 2016 on Campbell-Ewald Co. v. Gomez (“Campbell-Ewald”),2 which presents 

the question of whether a plaintiff and a putative class can proceed with their claims when the 

defendant makes an offer of judgment under Federal Rule of Procedure 68 to the plaintiff for the 

entire relief sought in the complaint. Rulings in the defendant’s favor in either of the cases 

would eliminate Plaintiff’s claims. Therefore, in the interest of avoiding a potential needless 

 

1

 742 F.3d 409 (9th Cir. 2014) cert. granted, --U.S. --, 135 S.Ct. 1892 (2015).

2 768 F.3d 871 (9th Cir. 2014) cert. granted, -- U.S. --, 135 S.Ct. 2311 (2015).

Case 3:15-cv-01857-BR Document 20 Filed 12/29/15 Page 2 of 8
 

Page 3 - Defendant’s Motion to Stay 

70069238.2 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

expenditure of time and resources in litigation, the Court should use its inherent power to stay 

these proceedings pending the Supreme Court’s ruling on these two cases. 

II. ARGUMENT 

The Court should use its inherent authority to stay this case in order to avoid unnecessary 

litigation costs when two expected Supreme Court’s opinions may dispose of or significantly 

affect the scope of this litigation. 

A. The Court has Power to Stay the Case. 

It is well established that a federal court has discretion to stay an action, pursuant to its 

power to control its docket. See Landis v. N. American Co., 299 U.S. 248, 254-55, 57 S. Ct. 163, 

81 L. Ed. 153 (1936) (“[T]he power to stay proceedings is incidental to the power inherent in 

every court to control the disposition of the causes on its docket with economy of time and effort 

for itself, for counsel, and for litigants.”). 

In determining whether to exercise its discretion to grant a stay, courts must weigh the 

competing interests that will be affected by the grant or denial of a stay. CMAX, Inc. v. Hall, 300 

F.2d 265, 268 (9th Cir. 1962) (affirming stay). The competing interests are (1) the possible 

damage which may result from the granting of a stay; 

(2) the hardship or inequity which a party may suffer in being required to go forward; and (3) the 

orderly course of justice measured in terms of simplifying or complicating of issues, proof, and 

questions of law which could be expected to result from a stay. Id. (citing Landis, 299 U.S. at 

254–55). 

Under this analysis, “[a] trial court may, with propriety, find it is more efficient for its 

own docket and the fairest course for the parties to enter a stay of an action before it, pending 

resolution of independent proceedings which bear upon the case.” Levya v. Certified Grocers of 

California, Ltd., 593 F.2d 857, 863 (9th Cir. 1979) (remanding for district court to consider the 

appropriate factors). A stay may be appropriate even if the other proceedings do not control the 

action before the court. Id. at 863–64. 

Case 3:15-cv-01857-BR Document 20 Filed 12/29/15 Page 3 of 8
 

Page 4 - Defendant’s Motion to Stay 

70069238.2 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

B. A Stay is Appropriate Pending Spokeo. 

This case should be stayed pending a ruling in Spokeo because the Supreme Court’s 

decision could apply directly to dispose of this case. The Spokeo plaintiff alleges that the 

defendant’s posting of inaccurate information about his employment status and other details 

violates the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (“FCRA”). 742 F.3d at 710-11. 

The plaintiff contends that he, and a class of similarly situated individuals, are entitled to 

statutory damages under the FCRA. Id. The FCRA provides that a defendant who willfully fails 

to comply with its provisions is liable to a consumer for “actual damages sustained by the 

consumer as a result of the failure or damages of not less than $100 and not more than 

$1,000. . .”, 15 U.S.C. § 1681n(a). The Ninth Circuit found that the FCRA “does not require a 

showing of actual harm when a plaintiff sues for willful violations” or without any “identifiable 

or measurable actual damages.” Spokeo, 742 F.3d at 413 (citation to quoted case omitted). In 

other words, Congress “elevated” the bare violation of the FCRA to the status of a legally 

cognizable injury sufficient for Article III standing. Id. 

The question before the Supreme Court is “[w]hether Congress may confer Article III 

standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise 

invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare 

violation of a federal statute.”3

 A ruling in favor of the defendant in Spokeo would directly apply 

to the Plaintiff and putative class in this action. Like the FCRA, the TCPA allows a plaintiff to 

recover statutory damages without proof of actual damages. 47 U.S.C. § 227(b)(3) (allowing 

plaintiff “to recover for actual monetary loss for such a violation, or to receive $500 in damages 

for each such violation”; and for a plaintiff to recover up to treble damages for a willful or 

knowing violation). If the Court finds that the Spokeo plaintiff lacks standing, then Plaintiff, and 

the putative class members here, would likewise lack standing because all they allege are 

 

3 Spokeo’s Question Presented is available at http://www.supremecourt.gov/qp/13-01339qp.pdf. 

Case 3:15-cv-01857-BR Document 20 Filed 12/29/15 Page 4 of 8
 

Page 5 - Defendant’s Motion to Stay 

70069238.2 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

statutory damages based on an alleged “bare violation” of the TCPA. [See Dkt. 1 ¶¶ 44, 45, 50, 

51.] 

Courts within the Ninth Circuit, and around the country, have regularly stayed TCPA and 

other cases alleging bare violations of consumer protection statutes. See, e.g., Eric B. Fromer 

Chiropractic, Inc. v. New York Life Ins. & Annuity Corp., No. CV 15-04767-AB (JCX), 

2015 WL 6579779, at *1 (C.D. Cal. Oct. 19, 2015) (staying alleged class action claim under the 

TCPA pending rulings in Spokeo and Campbell-Ewald, after finding: (a) the plaintiff and class 

would not be materially harmed by the stay; (b) absent a stay, the defendant and court would 

have to expend potentially wasted resources in litigation; and (c) the issues raised in the 

defendants’ motion to dismiss were identical to those raised in the Supreme Court cases and thus 

it made little sense to address those issues when a conclusive decision from the Supreme Court 

was forthcoming).4

 

Absent a stay here, the Court and parties would expend time and resources on class 

certification and discovery that would be wasted if Spokeo applies to bar standing for Plaintiff 

and the putative class based on statutory damages alone. A defense ruling would mean that 

Plaintiff and all class members would have to prove actual damages, which would likely scuttle 

 

4 See also Tel. Science Corp. v. Hilton Grand Vacations Co., LLC, No. 6:15-cv-969-Orl-41DAB, 

2015 WL 7444409 (M.D. Fla. Nov. 20, 2015) (TCPA); Lopez v. Miami-Dade County, No. 15-

Civ-22943, 2015 WL 7202905 (S.D. Fla. Nov. 6, 2015) (Fair and Accurate Credit Transaction 

Act (“FACTA”)); Duchene v. Westlawk Servs., LLC, No. 2:13-cv-01577, 2015 WL 5947669 

(W.D. Pa. Oct. 13, 2015) (TCPA); Yaakov v. Varitronics, LLC, No. CIV. 14-5008 ADM/FLN, 

2015 WL 5092501, at *4 (D. Minn. Aug. 28, 2015) (TCPA); Salvatore v. Microbilt Corp., No. 

4:14-cv-1848, 2015 WL 5008856 (M.D. Pa. Aug. 20, 2015) (FCRA, FACTA); Provo v. Rady 

Children’s Hospital—San Diego, No. 15cv0081, 2015 WL 6144029 (S.D. Cal. July 29, 2015) 

(Fair Debt Collection Practices Act); Stone v. Sterling Infosystems, Inc., 2:15-CV-00711-MCE, 

2015 WL 4602968 (E.D. Cal. July 29, 2015) (FCRA); Hillson v. Kelly Servs., Inc., 2:15-cv10803, 2015 WL 4488493 (E.D. Mich. July 15, 2015) (FCRA); Boise v. ACE USA, Inc., No. 15-

civ-21264, 2015 WL 4077433, at **6-7 (S.D. Fla. July 6, 2015) (TCPA); Larson v. Trans 

Union, LLC, No. 12-cv-05726 (N.D. Cal. June 26, 2015) (FCRA); Mey v. Frontier Commc’ns 

Corp., No. 3:13-cv-01191 (D. Conn. May 26, 2015) (Order, Dkt. No. 1118) (TCPA); Williams v. 

Elephant Ins. Co., 1:15-CV-00119-GBL, 2015 WL 33631691 (E.D. Va. May 27, 2015) (TCPA). 

Case 3:15-cv-01857-BR Document 20 Filed 12/29/15 Page 5 of 8
 

Page 6 - Defendant’s Motion to Stay 

70069238.2 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

class certification because individual questions would predominate. Compared to this potential 

expenditure of tens of thousands of dollars in litigation, the brief stay would not cause any 

material harm. This case is new—ViSalus’s answer is not due until December 28, 2015. 

[Dkt. 15.] At most, a stay would delay the start of discovery for only a few months. 

Accordingly, in the interest of the fair and efficient administration of justice, the Court should 

stay this action (as so many district courts have done) until the Supreme Court rules in Spokeo. 

C. The Case Should Be Stayed Pending a Ruling in Campbell-Ewald. 

The Court should also stay this action pending the Supreme Court ruling in CampbellEwald, which is expected around the same time. The relevant Questions Presented are: 

(1) “Whether a case becomes moot, and thus beyond the judicial power of Article III, when the 

plaintiff receives an offer of complete relief on his claim”; and (2) “Whether the answer to the 

first question is any different when the plaintiff has asserted a class claim under Federal Rule of 

Civil Procedure 23, but receives an offer of complete relief before any class is certified.”5

 If the 

Court in Campbell-Ewald rules in the defendant’s favor, then ViSalus intends to make a Rule 68 

offer of judgment to Plaintiff for the full relief she seeks, thereby mooting her claims and 

defeating the class action. 

Courts in this district, and around the country, have stayed TCPA and other putative-class 

litigation pending the Supreme Court’s decisions in Campbell-Ewald. See e.g., Eric B. Fromer 

Chiropractic, supra; Wolf v. Lyft, Inc., C 15-01441 JSW, 2015 WL 4455965, at *2 (N.D. Cal. 

July 20, 2015) (issuing stay because Campbell-Ewald applied directly to the case, both parties 

would be harmed by potentially needless litigation, and a stay would be finite and brief). 6

Accordingly, the Court should stay this litigation pending a ruling in Campbell-Ewald because a 

 

5

 See Question Presented available http://www.supremecourt.gov/qp/14-00857qp.pdf.

6 See also Schartel v. OneSource Technology, LLC, No. 1:15-cv-1434, 2015 WL 7430056 (N.D. 

Ohio Nov. 17, 2015) (FCRA); St. Louis Heart Ctr., Inc. v. Athenahealth, Inc., 4:15-CV-01215-

AGF, 2015 WL 6777873 (E.D. Mo. Nov. 4, 2015) (TCPA); Duchene, supra; Yaakov, supra; 

Boise, supra; Williams, supra. 

Case 3:15-cv-01857-BR Document 20 Filed 12/29/15 Page 6 of 8
 

Page 7 - Defendant’s Motion to Stay 

70069238.2 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

ruling in that case will provide ViSalus with guidance regarding an offer of judgment to Plaintiff, 

and it could be that an offer for the full relief Plaintiff seeks would moot the case. 

III. CONCLUSION 

For all of the foregoing reasons, ViSalus requests the Court stay this case pending the last 

of the U.S. Supreme Court rulings in Spokeo and Campbell-Ewald. 

DATED this 29th day of December, 2015. 

 MILLER NASH GRAHAM & DUNN LLP 

 /s/ Jonathan H. Singer 

Joshua M. Sasaki, P.C., OSB No. 964182 

josh.sasaki@millernash.com 

Jonathan H. Singer, OSB No. 105048 

jonathan.singer@millernash.com 

Phone: 503.224.5858 

Fax: 503.224.0155 

Attorneys for Defendant 

Case 3:15-cv-01857-BR Document 20 Filed 12/29/15 Page 7 of 8
 

Page 1 - Certificate of Service 

70069238.2 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

3400 U.S. BANCORP TOWER 

111 S.W. FIFTH AVENUE 

PORTLAND, OREGON 97204 

I hereby certify that I served the foregoing Defendant's Motion to Stay on: 

Scott F. Kocher 

FORUM LAW GROUP LLC 

811 S.W. Naito Parkway, Suite 420 

Portland, Oregon 97204 

Telephone: 503.445.2102 

Fax: 503.445.2120 

E-mail: scott@forumlawgroup.com

Attorneys for Plaintiff 

Rafey S. Balabanian (pro hac vice) 

Benjamin H. Richman (pro hac vice) 

Eve-Lynn Rapp (pro hac vice) 

EDELSON PC 

350 North LaSalle Street, Suite 1300 

Chicago, Illinois 60654 

Telephone: 312.589.6370 

Fax: 312.589.6378 

E-mail: rbalabanian@edelson.com 

 brichman@edelson.com 

 erapp@edelson.com 

Attorneys for Plaintiff 

Stefan L. Coleman 

Law Offices of Stefan Coleman, LLC 

201 S. Biscayne Blvd., 28th Floor 

Miami, Florida 33131 

Telephone: 877.333.9427 

Fax: 888.498.8946 

Email: law@stefancoleman.com 

Attorneys for Plaintiff

by the following indicated method or methods on the date set forth below: 

 CM/ECF system transmission. 

DATED this 29th day of December, 2015. 

/s/ Jonathan H. Singer 

Jonathan H. Singer, OSB No. 105048 

Of Attorneys for Defendant 

Case 3:15-cv-01857-BR Document 20 Filed 12/29/15 Page 8 of 8