1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LORI WAKEFIELD, individually and on 

behalf of all others similarly situated, 

Plaintiff-Appellee, 

 v. 

VISALUS, INC., a Nevada corporation, 

Defendant-Appellant.

No. 21-35201 

D.C. No. 3:15-cv-01857-SI 

OPINION

Appeal from the United States District Court

for the District of Oregon

Michael H. Simon, District Judge, Presiding

Argued and Submitted May 11, 2022

Portland, Oregon

Before: Marsha S. Berzon, Richard C. Tallman, and Morgan Christen, Circuit 

Judges.

Opinion by Judge Tallman

FILED

OCT 20 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

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SUMMARY*

Telephone Consumer Protection Act

The panel affirmed in part and vacated in part the district court’s judgment after 

a jury trial in favor of the plaintiffs in a class action under the Telephone Consumer 

Protection Act and remanded with instructions to reassess the constitutionality of a 

statutory damages award.

Plaintiffs alleged that ViSalus, Inc., sent them automated telephone calls 

featuring an artificial or prerecorded voice message without prior express 

consent. During the relevant timeframe, the Federal Communications Commission 

rules were amended to require, among other things, a written disclosure explicitly 

stating that, by providing a signature and phone number, the recipient consented to 

receive calls featuring an artificial or prerecorded voice. Because ViSalus did not 

provide the required written disclosures before making the calls at issue, it petitioned 

the FCC for a retroactive waiver of the written prior express consent rule. ViSalus 

did not, however, plead prior express consent as an affirmative defense. The jury 

returned a verdict against ViSalus, finding that it sent 1,850,440 prerecorded calls in 

violation of the TCPA. Because the TCPA sets the minimum statutory damages at

$500 per call, the total damages award against ViSalus was $925,220,000. Nearly 

two months later, the FCC granted ViSalus a retroactive waiver of the heightened 

written consent and disclosure requirements. ViSalus then filed post-trial motions 

to decertify the class, grant judgment as a matter of law, or grant a new trial on the 

ground that the FCC’s waiver necessarily meant ViSalus had consent for the calls 

made. Alternatively, ViSalus filed a post-trial motion challenging the statutory 

damages award as being unconstitutionally excessive. The district court denied 

these motions.

Affirming in part, the panel held that members of the plaintiff class had Article 

III standing to sue because the receipt of unsolicited telemarketing phone calls in 

alleged violation of the TCPA is a concrete injury in fact under Van Patten v. 

Vertical Fitness Grp., 847 F.3d 1037 (9th Cir. 2017). The panel held that 

TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), did not overrule Van Patten, 

* This summary constitutes no part of the opinion of the court. It has been 

prepared by court staff for the convenience of the reader.

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but rather reaffirmed the rule that an intangible injury qualifies as “concrete” when 

(1) Congress created a statutory case of action for the injury, and (2) the injury has 

a close historical or common-law analog.

The panel held that, when ruling on ViSalus’s motions to decertify the class, grant 

judgment as a matter of law, or grant a new trial, the district court properly refused 

to consider the FCC’s retroactive waiver. The panel explained that ViSalus waived 

a consent defense, and no intervening change in law excused this waiver of an 

affirmative defense.

The panel vacated the district court’s denial of ViSalus’s post-trial motion 

challenging the constitutionality of the statutory damages award under the Due 

Process Clause of the Fifth Amendment. The panel held that, in certain extreme 

circumstances, the Williams due process test applies to aggregated statutory damages 

awards even where the prescribed per-violation award is constitutionally 

sound. Under this test, a damages award violates due process if it is so severe and 

oppressive as to be wholly disproportionate to the offense and obviously 

unreasonable in relation to the goals of the statute and the conduct the statute 

prohibits. The panel held that constitutional limits on aggregate statutory damages 

awards are reserved for circumstances in which a largely punitive per-violation 

amount results in an aggregate that is gravely disproportionate to and unreasonably 

related to the legal violation committed. Under Six Mexican Workers v. Arizona 

Citrus Growers, 904 F.2d 1301 (9th Cir. 1990), relevant factors include the amount 

of award to each plaintiff, the total award, the nature and persistence of the 

violations, the extent of the defendant’s culpability, damage awards in similar cases, 

the substantive or technical nature of the violations, and the circumstances of each 

case. The panel remanded for the district court, guided by the applicable factors, to 

reassess the constitutionality of the statutory damages award.

COUNSEL

Becky S. James (argued) and Lisa M. Burnett, Dykema Gossett LLP, Los Angeles, 

California; Ryan J. Vanover, Dykema Gossett PLLC, Detroit, Michigan; for 

Defendant-Appellant.

J. Aaron Lawson (argued) and Rafey S. Balabanian, Edelson PC, San Francisco, 

California; Jay Edelson, Ryan D. Andrews, Benjamin H. Richman, and Ryan D. 

Andrews, Edelson PC, Chicago, Illinois; Greg S. Dovel and Simon Franzini, Dovel 

& Luner, Santa Monica, California; Scott F. Kocher, Forum Law Group LLP, 

Portland, Oregon; for Plaintiff-Appellee.

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TALLMAN, Circuit Judge:

Lori Wakefield, seeking to represent herself and a now certified class of 

similarly situated individuals, initiated this action against ViSalus, Inc. under the 

Telephone Consumer Protection Act (“TCPA”), alleging that ViSalus unlawfully 

sent her and the other class members automated telephone calls featuring an 

artificial or prerecorded voice message without prior express consent. See 47 

U.S.C. § 227(b)(1). During the relevant timeframe, the Federal Communications 

Commission (“FCC”) rules were amended to define “prior express consent” to 

require, among other things, a written disclosure explicitly stating that, by 

providing a signature and phone number, the recipient consented to receive calls 

featuring an artificial or prerecorded voice. See 16 C.F.R. § 310.4(b)(1)(v)(a)(i).

Wakefield and other class members (“Plaintiffs”) had signed up with 

ViSalus to purchase or sell purported weight-loss products. When their interest as 

customers or promoters waned, ViSalus sought to get their continued participation 

through targeted robocalls. Wakefield then brought federal statutory claims in 

response to these calls.

Because ViSalus did not provide the required written disclosures to 

Plaintiffs before making the calls at issue, ViSalus petitioned the FCC for a 

retroactive waiver of the written prior express consent rule. ViSalus did not, 

however, plead prior express consent as an affirmative defense. After a three-day 

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3

trial the jury returned a verdict against ViSalus, finding that it sent 1,850,440 

prerecorded calls in violation of the TCPA. Because the TCPA sets the minimum 

statutory damages at $500 per call, the total damage award against ViSalus was 

$925,220,000. 

Nearly two months later, the FCC granted ViSalus a retroactive waiver of 

the heightened written consent and disclosure requirements. ViSalus then filed 

post-trial motions to decertify the class, grant judgment as a matter of law, or grant 

a new trial on the ground that the FCC’s waiver necessarily meant ViSalus had 

consent for the calls made. Alternatively, ViSalus filed a post-trial motion 

challenging the $925,220,000 statutory damages award as being unconstitutionally 

excessive. The district court denied these motions, and ViSalus timely appealed. 

We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm the district 

court’s refusal to decertify the class, grant judgment as a matter of law, or grant a 

new trial, but we reverse and remand to the district court for further proceedings 

regarding the constitutionality of the nearly one-billion-dollar statutory damages 

award.1

1 ViSalus filed a motion requesting the panel to take judicial notice of 

(1) the FCC’s notice seeking public comment on ViSalus’s petition for retroactive 

waiver; (2) Wakefield’s petition for reconsideration submitted to the FCC; and (3) 

the FCC’s order denying Wakefield’s petition for reconsideration. ViSalus argues 

that notice should be taken of these documents because they are public records 

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I

A

“Americans . . . are largely united in their disdain for robocalls,” and the 

Federal Government has received a “staggering” number of complaints about 

robocalls in recent years. Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 

2335, 2343 (2020). In response to the public’s disdain for these calls, and the 

“nuisance” and “invasion of privacy” that they produce, Congress passed the 

Telephone Consumer Protection Act of 1991 (“TCPA”). Pub. L. 102-243, § 2(5), 

(6), (10), 105 Stat. 2394 (1991). Under the TCPA, it is unlawful for any person to 

initiate a telephone call using any “automatic telephone dialing system or an 

artificial or prerecorded voice” without the “prior express consent” of the recipient. 

47 U.S.C. § 227(b)(1)(A). Recipients of calls that violate the TCPA can sue “to 

recover for actual monetary loss from such a violation, or to receive $500 in 

damages for each such violation, whichever is greater.” Id. § 227(b)(3)(B).

The TCPA is enforced by the FCC, which is authorized by statute to enact 

rules to implement the law. See, e.g., id. § 227(b)(2). The TCPA does not define 

maintained by the FCC and are relevant to whether Plaintiffs were prejudiced by 

ViSalus’s failure to raise a consent defense before trial. Because we conclude that 

ViSalus waived a consent defense, see infra, Part II.B, this motion is DENIED as 

moot. 

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the phrase “prior express consent.” The FCC’s Orders and Rulings interpret and 

clarify the term.

Prior to October 2013, the Orders and Rulings provided that the TCPA’s 

prior express consent requirement was satisfied if the recipient voluntarily 

provided the caller with his or her phone number to use for a purpose related to the 

subject of the calls. See Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 

1044–46 (9th Cir. 2017) (interpreting In the Matter of Rules & Regulations 

Implementing the Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 8752 (1992)). But 

in 2012, the FCC issued a new rule, effective October 16, 2013 (“2012 Rule”), that 

required all requests for a recipient’s express consent to include, among other 

things, a clear and conspicuous written disclosure informing the recipient that by 

providing a telephone number and signature, the person authorizes the caller to 

deliver telemarketing calls using an automatic telephone dialing system or an 

artificial or prerecorded voice. 16 C.F.R. § 310.4(b)(1)(v)(a)(i); see also In the 

Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 

27 FCC Rcd. 1830, 1863 (2012).2

 

2 The full text of Section 310.4(b)(1)(v) defines an abusive 

telemarketing act or practice to include any outbound telephone call with a 

prerecorded message except when: 

In any such call to induce the purchase of any good or

service, the seller has obtained from the recipient of the 

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Shortly after the 2012 Rule was issued, two entities petitioned the FCC for 

guidance on whether written consents obtained prior to the 2012 Rule’s effective 

date were valid even if the writing did not specifically authorize the use of a 

prerecorded voice or include other information required by the 2012 Rule. See In 

the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 

1991, 30 FCC Rcd. 7961, 8012–14 (2015). In its order of June 18, 2015, the FCC 

acknowledged some ambiguity in its 2012 Rule and granted the two petitioners a 

retroactive waiver of the Rule. Id. at 8014–15. In short order, seven more entities 

petitioned for, and were granted similar retroactive waivers for failure to comply 

with the 2012 Rule. See In the Matter of Rules & Regulations Implementing the 

Tel. Consumer Prot. Act of 1991, 31 FCC Rcd. 11643 (2016).

call an express agreement, in writing, that: (i) The seller 

obtained only after a clear and conspicuous disclosure 

that the purpose of the agreement is to authorize the 

seller to place prerecorded calls to such person; (ii) The 

seller obtained without requiring, directly or indirectly, 

that the agreement be executed as a condition of 

purchasing any good or service; (iii) Evidences the 

willingness of the recipient of the call to receive calls that 

deliver prerecorded messages by or on behalf of a 

specific seller; and (iv) Includes such person’s telephone 

number and signature.

16 C.F.R. § 310.4(b)(1)(v)(A)(i–iv).

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B

Defendant-Appellant ViSalus is a multi-level marketing company that sells 

purported weight-loss products direct to consumers. ViSalus’s success depends on 

individuals signing up with ViSalus as either “customers” who only purchase 

products, or “promoters” who can also earn rewards by referring ViSalus products 

to new customers. Promoters and customers become part of the ViSalus network 

by completing an enrollment application. During the relevant time, these 

applications asked individuals to voluntarily provide a phone number to ViSalus. 

The enrollment applications varied as to what communication options they 

provided applicants. Some applications provided checkboxes to indicate the 

applicant’s communication preferences—for example, for email, phone, or text 

message communications; some provided a check box where the applicant could 

indicate a desire to “receive communications from ViSalus regarding special 

discounts and promotions;” and some provided no checkbox for communication 

preferences at all. None contained any written disclosures that the applicant was, 

by responding to inquiries about receiving communications, consenting to future 

automated or prerecorded calls from ViSalus. 

ViSalus often communicated with its customers and promoters who had 

provided a phone number. ViSalus would call promotors for the purpose of 

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sharing promotions, updates, and news, and it would call customers to inform them 

about current sales and special promotions. 

From 2012 to 2015, ViSalus began systematically placing telephone calls as 

part of what it termed a “WinBack” campaign, designed to entice former promoters 

and customers to return to or reactivate their ViSalus memberships by offering 

promotional pricing on ViSalus products. These calls were initially placed by an 

“outreach team.” By 2015, to increase the efficiency of ViSalus’s “outreach,” the 

company turned to a “Progressive Outreach Manager” automated system that 

allowed it to make tens of thousands of calls with the push of a button. A large 

volume of the calls placed using this system featured pre-recorded messages. 

Lori Wakefield enrolled to be a ViSalus promoter in 2012, and voluntarily 

provided her phone number to ViSalus on her enrollment application. After 

discontinuing her relationship with ViSalus a few months later and receiving 

written confirmation of the termination of the relationship in March of 2013, 

Wakefield had no further contact with the company until April 2015, when she 

received five prerecorded audio messages from ViSalus on her home phone as part 

of the WinBack Campaign. 

C

Wakefield instituted this lawsuit in October 2015, alleging that ViSalus had 

violated the TCPA by sending unsolicited telemarketing calls featuring artificial or 

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prerecorded voices without her prior express consent.3

 ViSalus answered the 

complaint, alleging that Wakefield could not make out a claim under the TCPA. 

ViSalus did not plead that it had consent for the calls it made to Plaintiffs. 

After a brief class discovery period, Wakefield moved to certify her TCPA 

claims for class treatment. The district court thereafter granted the motion in part, 

and certified a class including: 

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. 

Following certification, ViSalus amended its discovery answers regarding 

consent. Roughly two weeks later—and nearly two years after Wakefield first 

filed her complaint—ViSalus petitioned the FCC for a retroactive waiver of the 

2012 heightened prior express consent requirements. In that petition, ViSalus 

asserted that it should be granted a retroactive waiver because it was “similarly 

situated” to the nine other petitioners who had already received waivers. ViSalus 

3

 Wakefield also pleaded that ViSalus had violated regulations 

establishing the Do Not Call Registry, 47 U.S.C. § 227(c), and Oregon’s Stop 

Calling Law, Or. Rev. Stat. § 646. 

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did not immediately inform either the Court or Wakefield that it had filed the 

petition with the FCC. 

Nearly nine months after requesting the retroactive waiver, ViSalus brought 

to the district court’s attention that it intended to raise consent as a defense at trial. 

The district court responded that ViSalus had waived a consent defense by failing 

to plead the defense in its answer, and instructed ViSalus to file a motion to amend 

its answer if it wanted to raise the issue at trial. ViSalus did file a motion to amend 

its answer, but then later withdrew the motion, stating “ViSalus does not claim that 

. . . Plaintiff’s or the class’s claims are barred by them giving ViSalus prior express 

written consent.”4

 

The case went to trial in April 2019. Wakefield presented her case over 

three days. ViSalus declined to put on any evidence of its own, and instead argued 

in closing that Wakefield had not proven her case by a preponderance of the 

evidence. The jury returned a verdict against ViSalus, finding that it had placed 

1,850,440 calls in violation of the TCPA. Because the TCPA sets minimum 

statutory damages at $500 per call, the court ordered ViSalus to pay “an aggregate 

4 ViSalus instead stated that it intended to offer evidence of consent to 

show that damages should not be trebled. The district court later barred ViSalus 

from presenting evidence of consent at the trial, holding that whether damages 

should be trebled was an issue reserved for the court, not the jury. 

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amount not to exceed $925,218,000” for the class, and $2,000 for Wakefield 

herself. 

Nearly two months after the jury issued its verdict, the FCC approved 

ViSalus’s petition for a retroactive waiver of the prior express consent rule for all 

calls made on or before October 7, 2015. In the Matter of Rules & Regulations 

Implementing the Tel. Consumer Prot. Act of 1991, 34 FCC Rcd. 4851, 4856 

(2019). ViSalus filed notice with the district court the next day, alerting the court 

to the FCC’s decision. ViSalus then moved the district court to decertify the class 

and grant judgment as a matter of law, or, alternatively, to grant a new trial on the 

ground that the FCC waiver necessarily meant ViSalus had consent for the calls 

made. ViSalus additionally filed a motion challenging the “astronomical” statutory 

damages award of $925,220,000 as unconstitutionally excessive. 

The district court denied ViSalus’s motions. First, the court noted that “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.” The court pointed to ViSalus’s express disclaimer of any 

consent defense and observed that ViSalus had never asked for a stay pending the 

FCC’s resolution of its petition. The court also observed that the FCC’s grant of a 

retroactive waiver was reasonably foreseeable because it had previously granted 

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nine such waivers to similarly situated companies. Accordingly, the district court 

refused to consider the FCC waiver, finding that ViSalus’s failure to assert a 

consent defense at trial was unreasonable and that excusing this failure would be 

prejudicial to Plaintiffs, who were unable to take discovery on the issue. 

Second, the district court refused to reduce the statutory damages award. 

The court noted that no Ninth Circuit precedent existed to guide lower courts in 

reducing statutory damages awards that are found to be unconstitutionally 

excessive. The court further reasoned that it was within Congress’s discretion to 

fix damages for a violation of the TCPA at $500, and that due process did not 

require the court to consider the constitutionality of the statutory damages award in 

the aggregate. This appeal timely followed. 

II

ViSalus raises three issues on appeal: (1) whether Plaintiffs can establish a 

concrete injury in fact under Article III; (2) whether ViSalus’s failure to assert a 

consent defense at trial is excused because the FCC’s retroactive waiver 

constituted an intervening change in law; and (3) whether the $925,220,000 

aggregate damages award violates due process because it is unconstitutionally 

excessive. We address each issue in turn. 

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A

ViSalus argues for the first time on appeal that Wakefield and other 

members of the certified class lack Article III standing to sue. We review this 

issue de novo, see Carroll v. Nakatani, 342 F.3d 934, 940 (9th Cir. 2003), and hold 

that Plaintiffs have standing to bring this suit. 

Article III limits federal judicial power to “Cases” and “Controversies,” U.S.

Const. art. III, § 2, and the Article III standing doctrine “limits the category of 

litigants empowered to maintain a lawsuit in federal court to seek redress for a 

legal wrong.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). To show Article 

III standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is 

fairly traceable to the challenged conduct of the defendant, and (3) that is likely to 

be redressed by a favorable judicial decision.” Id. A plaintiff establishes an injury 

in fact if the plaintiff suffered “‘an invasion of a legally protected interest’ that is 

‘concrete and particularized’ and ‘actual or imminent, not conjectural or 

hypothetical.’” Id. at 339 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 

(1992)). An injury qualifies as “concrete” if it is “real” rather than “abstract”—

that is, “it must actually exist.” Id. at 340.

Here, ViSalus contends that Plaintiffs lack standing because Wakefield 

“failed to meet her burden to prove any class member suffered a concrete injury in 

fact resulting from ViSalus’s alleged violation of the TCPA.” But Plaintiffs allege 

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an injury from the receipt of unwanted telephone calls, and we have previously 

held in Van Patten v. Vertical Fitness Group that the receipt of “[u]nsolicited 

telemarketing phone calls” is “a concrete injury in fact sufficient to confer Article 

III standing.” 847 F.3d at 1043; see also Chennette, et al. v. Porch.com, Inc., et 

al., No. 20-35962, slip op. at 7 (9th Cir. Oct. 12, 2022).

5

 Plaintiffs therefore have 

standing. 

ViSalus begrudgingly acknowledges, as it must, that under Van Patten the 

receipt of telephone calls in alleged violation of the TCPA is a concrete injury for 

Article III purposes. ViSalus nevertheless insists that Van Patten no longer 

controls in light of the Supreme Court’s recent decision in TransUnion LLC v. 

Ramirez, 141 S. Ct. 2190 (2021). We are unpersuaded. 

In TransUnion, the Supreme Court reaffirmed the preexisting rule that an 

intangible injury qualifies as “concrete” when that injury bears a “close 

relationship to harms traditionally recognized as providing a basis for lawsuits in 

American courts.” Id. at 2204; see also Spokeo, 578 U.S. at 340 (“In determining 

5

 Many of our sister circuits have reached the same conclusion. See 

Cranor v. 5 Star Nutrition, LLC, 998 F.3d 686, 690–92 (5th Cir. 2021); Gadelhak 

v. AT&T Servs., Inc., 950 F.3d 458, 461–63 (7th Cir. 2020); Golan v. 

FreeEats.com, Inc., 930 F.3d 950, 958–59 (8th Cir. 2019); Melito v. Experian 

Mktg. Sols., Inc., 923 F.3d 85, 93–94 (2d Cir. 2019); Krakauer v. Dish Network, 

LLC, 925 F.3d 643, 653 (4th Cir. 2019); Susinno v. Work Out World Inc., 862 F.3d 

346, 350–52 (3d Cir. 2017); but see Salcedo v. Hanna, 936 F.3d 1162, 1169–73 

(11th Cir. 2019).

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whether an intangible harm constitutes injury in fact, both history and the judgment 

of Congress play important roles.”). TransUnion therefore strengthens the 

principle that an intangible injury is sufficiently “concrete” when (1) Congress 

created a statutory cause of action for the injury, and (2) the injury has a close 

historical or common-law analog. 141 S. Ct. at 2204–07. This approach is the 

very same one we applied in Van Patten, when we looked to the Restatement of 

Torts’ discussion of privacy torts and the widespread recognition among states of 

the right to privacy as evidence of a common-law analog to privacy violations. 

847 F.3d at 1043. We also considered Congress’s judgment that such violations 

are “legally cognizable injuries” when creating a remedy for unsolicited calls under 

the TCPA. Id. (quoting Spokeo, 578 U.S. at 340). Our analysis in Van Patten

therefore not only survives TransUnion—it is strengthened by it.

Applying the test from TransUnion and Van Patten to the facts of this case, 

Plaintiffs have suffered a concrete injury in fact. First, Congress has created a 

statutory cause of action allowing Plaintiffs to sue. See 47 U.S.C. § 227(b)(1), (3). 

Second, Plaintiffs have asserted an injury with a close historical and common-law 

analog, since the receipt of unsolicited phone calls closely resembles traditional 

claims for “invasions of privacy, intrusion upon seclusion, and nuisance.” Van 

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Patten, 847 F.3d at 1043.6

 Because the receipt of “unsolicited telemarketing phone 

calls” is “a concrete injury in fact,” id., Plaintiffs have Article III standing to sue.7

 

B

ViSalus argues that the district court erred in refusing to consider the FCC’s 

retroactive waiver when ruling on ViSalus’s motions to decertify the class, grant 

judgment as a matter of law, or grant a new trial. Because ViSalus waived a 

consent defense and no intervening change in law excuses this waiver, we 

disagree.

6 See also Cranor, 998 F.3d at 691–92 (discussing common-law public 

nuisance); Gadelhak, 950 F.3d at 462 (drawing a comparison to intrusion upon 

seclusion); Golan, 930 F.3d at 959 (discussing the law of nuisance); Melito, 923 

F.3d at 93 (agreeing with the comparison in Van Patten and Susinno to nuisance, 

intrusion upon seclusion, and privacy invasion torts); Krakauer, 925 F.3d at 653

(discussing intrusion upon seclusion as an example of long standing private law 

protections for “privacy interests in the home”); Susinno, 862 F.3d at 351–52

(focusing on intrusion upon seclusion); cf. Restatement (Second) of Torts § 652B 

(Am. L. Inst. 1977) (discussing intrusion upon seclusion).

7

 ViSalus also argues that standing is lacking because Plaintiffs 

consented to ViSalus’s telephone calls, and “there is no harm that traditionally 

serves as the basis for litigation in American courts that is analogous to receiving a 

telephone call for which one consented.” But determining whether Plaintiffs 

consented to ViSalus’s calls requires an analysis of the merits of Plaintiffs’ TCPA 

claim. See Van Patten, 847 F.3d at 1044 (“Express consent is . . . an affirmative 

defense for which the defendant bears the burden of proof.”). Because the 

“threshold inquiry into standing ‘in no way depends on the merits,’” Whitmore v. 

Arkansas, 495 U.S. 149, 155 (1990) (quoting Warth v. Seldin, 422 U.S. 490, 500 

(1975)), this argument fails.

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As a preliminary matter, the district court properly concluded that ViSalus 

had waived a consent defense. “Express consent is . . . an affirmative defense for 

which the defendant bears the burden of proof,” Van Patten, 847 F.3d at 1044, and 

a “defendant’s failure to raise an ‘affirmative defense’ in his answer effects a 

waiver of that defense.” In re Adbox, Inc., 488 F.3d 836, 841 (9th Cir. 2007); see 

also Fed. R. Civ. Pro. 8(c). Here, ViSalus did not raise consent as a defense in its 

answer. And although ViSalus filed a motion to amend its answer to assert this 

defense, ViSalus withdrew that motion and did not seek to amend again.

The district court also properly concluded that the FCC’s grant of ViSalus’s 

petition did not excuse ViSalus’s waiver of its consent defense. When a defendant 

fails to adequately plead an affirmative defense “an exception to the waiver rule 

exists for intervening changes in the law.” Big Horn Cnty. Elec. Co-op., Inc. v. 

Adams, 219 F.3d 944, 953 (9th Cir. 2000) (citing Curtis Publ’g Co. v. Butts, 388 

U.S. 130, 142–43 (1967)). For this exception to apply, however, the defendant 

must show that the defense, if timely asserted, would have been futile under 

binding precedent. Bennett v. City of Holyoke, 362 F.3d 1, 7 (1st Cir. 2004). This 

requirement rests on the principle underlying the intervening change in law 

exception, that a “waiver” requires the “intentional relinquishment or abandonment 

of a known right,” United States v. Olano, 507 U.S. 725, 733 (1993) (quoting 

Johnson v. Zerbst, 304 U.S. 458, 464 (1938)), and a defendant cannot be deemed 

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to waive the right to assert a defense if the defendant reasonably did not know the 

defense was available at the time of the purported waiver. Accordingly, the 

exception for an intervening change in law only “protect[s] 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).

Here, ViSalus does not qualify for protection under the intervening change 

in law exception. Even if the FCC’s retroactive waiver of the 2012 Rule did 

constitute a change in law, ViSalus always reasonably knew, or should have 

known, that the FCC was quite likely to grant its petition. As the district court 

concluded, the nine waivers the FCC previously granted “foreshadowed the FCC’s 

decision to grant ViSalus’s petition such that ViSalus was not taken by surprise 

when its petition was granted.” Aware of these prior waivers, ViSalus knew that a 

consent “defense was fairly available.” Bennett, 362 F.3d at 7. Yet ViSalus made 

no effort to assert the defense, develop a record on consent, or seek a stay pending 

the FCC’s decision. In the words of the district court, 

[t]his 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 

for waiver just as ViSalus requested. ViSalus got exactly 

what it asked for. 

Moreover, if ViSalus was truly unsure about whether or when the FCC 

would grant its Petition, then it should have asked the district court to stay the 

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19

litigation pending the FCC’s ruling. Instead, ViSalus made the strategic litigation 

decision to proceed to trial and defend on the ground that Plaintiffs had not proven 

their prima facie case by a preponderance of the evidence. Whether or not 

ViSalus’s choice was wise with the benefit of hindsight, Federal Rules 50 and 59 

do not exist to overturn “informed and presumptively strategic decisions on 

appeal.” See GenCorp, 477 F.3d at 374 (discussing the intervening-change-in-law 

exception in the context of Rule 60(b)(6)).

For these reasons, we hold that the district court did not err in refusing to 

consider the FCC’s retroactive waiver of the 2012 Rule when ruling on ViSalus’s 

motions.

C

ViSalus last argues that the Due Process Clause of the Fifth Amendment 

requires a reduction of the $925,220,000 statutory damages award. Whether a 

damages award violates due process is a question of law that we review de novo. 

See Swinton v. Potomac Corp., 270 F.3d 794, 802 (9th Cir. 2001). 

ViSalus does not challenge the TCPA’s statutory framework as to the $500 

amount for a single violation; several courts have held that the TCPA’s $500 civil 

remedy in isolation does not violate due process on a per violation basis.

8

 Instead, 

8

 See, e.g., Centerline Equip. Corp. v. Banner Pers. Serv., 545 F. Supp. 

2d 768, 777–78 (N.D. Ill. 2008); Acct. Outsourcing, LLC v. Verizon Wireless Pers. 

(21 of 37)
20

ViSalus argues that even if the TCPA’s statutory penalty of $500 per violation is 

constitutional, an aggregate award of $925,220,000 in this class action case is so 

“severe and oppressive” that it violates ViSalus’s due process rights. 

Juries and legislatures enjoy broad discretion in awarding damages. The due 

process clauses of the Constitution, however, set outer limits on the magnitude of 

damages awards. In recent years, numerous cases have outlined criteria for 

evaluating when punitive damages awarded by a jury exceed constitutional 

limitations. See, e.g., TXO Prod. Corp. v. All. Res. Corp., 509 U.S. 443 (1993); 

BMW of North America v. Gore, 517 U.S. 559 (1996); State Farm Mut. Auto. Ins. 

Co. v. Campbell, 538 U.S. 408 (2003). How the Constitution limits the award of 

statutory damages is less developed. 

Such constitutional due process concerns are heightened where, as here, 

statutory damages are awarded as a matter of strict liability when plaintiffs are 

unable to quantify any actual damages they have suffered from receiving the 

robocalls. See Parker v. Time Warner Ent. Co., 331 F.3d 13, 22 (2d Cir. 2003); 

see also Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 776 (11th Cir. 

2011) (“[The] TCPA is essentially a strict liability statute.”). Under this strict 

Commc’ns, L.P., 329 F. Supp. 2d 789, 808–10 (M.D. La. 2004); Texas v. Am. 

Blastfax, Inc., 121 F. Supp. 2d 1085, 1090–91 (W.D. Tex. 2000); Kenro, Inc. v. 

Fax Daily, Inc., 962 F. Supp. 1162, 1165–67 (S.D. Ind. 1997).

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21

liability standard, a court must evaluate an award of statutory damages “with due 

regard for the interests of the public, the numberless opportunities for committing 

the offense, and the need for securing uniform adherence” to the statute. St. Louis, 

I. M. & S. Ry. Co. v. Williams, 251 U.S. 63, 67 (1919).

Over a century ago, the Supreme Court declared that damages awarded 

pursuant to a statute violate due process only if the award is “so severe and 

oppressive as to be wholly disproportioned to the offense and obviously 

unreasonable.” Williams, 251 U.S. at 67. The Supreme Court first announced the 

principle that statutory damages may exceed constitutional limitations in certain 

extraordinary circumstances in a case prior to Williams, Waters-Pierce Oil Co. v. 

State of Texas. 212 U.S. 86, 111 (1909). Waters-Pierce observed “[t]he fixing of 

punishment for crime or penalties for unlawful acts against its laws is within the 

police power of the state. We can only interfere with such legislation and judicial 

action of the states enforcing it if the fines imposed are so grossly excessive as to 

amount to a deprivation of property without due process of law.” Id.

Williams, reviewing the award of damages under an Arkansas statute 

prescribing penalties for railroads and other common carriers for charging more 

than the lawfully provided rate, extended the logic of Waters-Pierce beyond 

excessive civil fines to general statutory damages. Williams, 251 U.S. at 66. 

Williams also directed that the constitutional inquiry focus on extreme cases, the 

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22

proportionality of the award to the “offense” in light of the statute’s goals, and the 

overall reasonableness of the award. Id. at 66–67. And Williams stressed that a 

constitutional limit would be found only in the rare cases in which the award was 

“severe and oppressive,” emphasizing the “wide latitude” possessed by legislatures 

in setting statutory penalties and the important government powers inherent in 

doing so. Id. at 66–67. Williams ultimately upheld the damages award at issue, 

holding the award not “wholly” disproportionate or “obviously” unreasonable in 

light of the statute’s important purpose of “securing uniform adherence to 

established passenger rates” as well as the “numberless opportunities for 

committing the offense.” Id. at 67.

We have recognized the application of Williams to statutory awards on a 

per-violation basis, holding “[a] statutorily prescribed penalty violates due process 

rights ‘only where the penalty prescribed is so severe and oppressive as to be 

wholly disproportioned to the offense and obviously unreasonable.’” United States 

v. Citrin, 972 F.2d 1044, 1051 (9th Cir. 1992) (quoting Williams, 251 U.S. at 66–

67). In Citrin, we applied the Williams test to a statutory award of $113,479.11 for 

a single violation. Id. at 1051. We reasoned that in the context of the statute at 

issue, which specified damages for noncompliance with the terms of a federal 

scholarship program placing early-career medical professionals in underserved 

areas, the award was “not so unreasonable that [it] violate[s] due process” given 

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23

“the resources necessary to find a [replacement] doctor to practice” in those 

locations. Id.

Since Citrin, courts in this and other circuits have grappled with the 

constitutionality of statutory damages awards challenged in the aggregate where 

the award is unusually high because of either the large number of violations at 

issue in a single dispute or, most relevant to this case, the aggregation of damages 

in class action litigation. See, e.g., Golan, 930 F.3d at 962–63; Parker, 331 F.3d at

22; Montera, 2022 WL 3348573, at *4–5.

9

 In Bateman v. American MultiCinema, Inc., 623 F.3d 708, 723 (9th Cir. 2010), we reserved the question whether 

an aggregated statutory damages award could violate due process. We now hold 

that, pursuant to Williams, aggregated statutory damages awards are, in certain 

extreme circumstances, subject to constitutional due process limitations.

Several considerations support the application of the Williams constitutional 

due process test to aggregated statutory damages awards even where the prescribed 

per-violation award is constitutionally sound. First, although Williams did not 

address an aggregated damages award, the logic of the case does not turn on the 

amount of the per-violation penalty. 251 U.S. at 66–67. Rather, Williams suggests 

9 At least one California district court has discussed application of the

Williams test to an aggregated damages award in the TCPA context. See Perez v. 

Rash Curtis & Assocs., No. 4:16-CV-03396-YGR, 2020 WL 1904533, at *9 (N.D. 

Cal. Apr. 17, 2020).

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24

a general reasonableness and proportionality limit on damages awarded pursuant to 

statutes, taking into account statutory goals. Williams imposes a constitutional 

limit on damages that are “so severe and oppressive” as to no longer bear any 

reasonable or proportioned relationship to the “offense.” Id. at 67. Williams did 

not consider an “offense” narrowly; rather, the Court evaluated the importance of 

the proscribed conduct (overcharging fares) and the likelihood of violations, which 

the Court found to be high, noting the “numberless opportunities for committing 

the offense.” Id. Thus, evaluation of an award’s relationship to the “offense” 

requires consideration of the statute’s public importance and deterrence goals. An 

aggregated award could, like a per-violation award, be wholly disproportioned to 

the prohibited conduct (and its public importance) and greatly exceed any 

reasonable deterrence value. Thus, where aggregation has resulted in 

extraordinarily large awards wholly disproportionate to the goals of the statute, 

Williams implies a constitutional limit may require reduction.

Second, the goals of a statute in imposing a per-violation award may become 

unduly punitive when aggregated. And statutory penalties, unlike jury awards, are 

not generally disaggregated by purpose. Indeed, most statutes combine deterrence, 

compensatory, and punitive goals into a single lump sum per violation: “Although 

statutory damages amounts might be calculated in part to compensate for actual 

losses that are difficult to quantify, they are often also motivated in part by a 

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25

pseudo-punitive intention to ‘address and deter overall public harm.’” Parker, 331 

F.3d at 26 (Newman, J., concurring) (quoting Texas v. Am. Blastfax, Inc., 121 F. 

Supp. 2d 1085, 1090 (W.D. Tex. 2000)). 

Compensation and deterrence aims can be overshadowed when damages are 

aggregated, leading to damages awards that are largely punitive and untethered to 

the statute’s purpose. In Parker, the Second Circuit observed that aggregated class

action damages and per-violation statutory penalties were both intended, in part, to 

create incentives for litigation. Coupled, they have the capacity to “expand the 

potential statutory damages so far beyond the actual damages suffered that the 

statutory damages come to resemble punitive damages.” Id. at 22; see also 

Montera, 2022 WL 3348573, at *1 (“The statutory damages in this case veer away 

from serving a compensatory purpose and towards a punitive purpose”). 

We have similarly observed that deterrence and compensation rationales lose 

force in certain large, aggregated awards. In Six (6) Mexican Workers v. Arizona 

Citrus Growers, for example, we reviewed an aggregated damages award in a class 

action lawsuit for violations of the Farm Labor Contractor Registration Act 

(“FLCRA”) and found that the individual awards exceeded both “what was 

necessary to compensate any potential injury from the violations” and the awards, 

in the aggregate, exceeded “that necessary to enforce the Act or deter future 

violations.” 904 F.2d 1301, 1309 (9th Cir. 1990). In short, aggregation can, in 

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26

extreme circumstances, result in awards that may greatly outmatch any statutory 

compensation and deterrence goals, resulting in awards that are largely punitive.

Where a statute’s compensation and deterrence goals are so greatly 

overshadowed by punitive elements, constitutional due process limitations are 

more likely to apply. Although we decline to apply the Supreme Court’s tests 

developed in the line of cases including BMW of North America, 517 U.S. 559, and 

State Farm, 538 U.S. 408, outside the context of a jury’s award of punitive 

damages, by analogy these cases teach that where statutory damages no longer 

serve purely compensatory or deterrence goals, consideration of an award’s 

reasonableness and proportionality to the violation and injury takes on heightened 

constitutional importance. See TXO Prod. Corp., 509 U.S. at 458 (noting that 

“reasonableness” is the focus of a due process inquiry regarding punitive 

damages); BMW of North America, 517 U.S. at 580–81 (discussing the “ratio” 

between a punitive damages award and the “actual harm inflicted on the plaintiff” 

as measured through compensatory damages—one of three factors important to a 

due process evaluation of a punitive damages award issued by a jury). 

We thus conclude that the aggregated statutory damages here, even where 

the per-violation penalty is constitutional, are subject to constitutional limitation in 

extreme situations—that is, when they are “wholly disproportioned” and 

“obviously unreasonable” in relation to the goals of the statute and the conduct the 

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27

statute prohibits. Williams, 251 U.S. at 67. As with punitive damages awarded by 

juries and per-violation statutory damages awards, a district court must consider 

the magnitude of the aggregated award in relation to the statute’s goals of 

compensation, deterrence, and punishment and to the proscribed conduct.

Six Mexican Workers provides further guidance for determining whether a 

particular statutory damages award is disproportionately punitive in the aggregate. 

904 F.2d at 1309. In that case, we adopted the factors the Fifth Circuit identified in 

Beliz v. W.H. McLeod & Sons Packing Co. to evaluate liquidated damages awards:

1) the amount of award to each plaintiff, 2) the total 

award, 3) the nature and persistence of the violations, 4) 

the extent of the defendant’s culpability, 5) damage 

awards in similar cases, 6) the substantive or technical 

nature of the violations, and 7) the circumstances of each 

case.

Id. at 1309 (quoting Beliz v. W.H. McLeod & Sons Packing Co., 765 F.2d 1317, 

1332 (5th Cir. 1985)).

As the district court noted, Six Mexican Workers addressed a somewhat

different issue than the one we face here: the case dealt with the reduction of 

damages per violation to an amount within a statutorily defined range. Id. at 1309–

11. The FLCRA—the statute at issue in Six Mexican Workers—did not 

contemplate punitive penalties in the calculation of liquidated damages. Id. at 

1309 (citing Alvarez v. Longboy, 697 F.2d 1333, 1340 (9th Cir. 1983)). But many

statutes, like the one at issue here, set a statutory floor for damages, as opposed to a 

(29 of 37)
28

range, and in doing so, reflect punitive as well as compensatory and deterrence 

goals. This distinction does not undermine the relevance of the Six Mexican 

Workers factors to the constitutional due process test. Six Mexican Workers points 

courts to factors to help assess proportionality and reasonableness and so can guide 

trial courts in determining when an award is extremely disproportionate to the 

offense and “obviously” unreasonable. Williams, 251 U.S. at 67.

We stress that only very rarely will an aggregated statutory damages award

meet the exacting Williams standard and exceed constitutional limitations where 

the per-violation amount does not. Legislatures are empowered to prescribe purely 

punitive penalties for violations of statutes. In Williams, the Supreme Court made 

clear that the statutory damages at issue were “essentially penal, because [they are] 

primarily intended to punish the carrier for taking more than the prescribed rate” 

and yet the statute was “not contrary to due process of law” because “the power of 

the state to impose fines and penalties for a violation of its statutory requirements 

is coeval with government.” 251 U.S. at 66 (quoting Mo. Pac. Ry. Co. v. Humes, 

115 U.S. 512, 523 (1885)). The Supreme Court, consistent with this reasoning, has 

long upheld statutory provisions imposing double or triple damages. See, e.g., 

Overnight Motor Trans. Co. v. Missel, 316 U.S. 572, 584 (1942). Thus, just 

because an aggregate award becomes predominantly punitive does not render it 

constitutionally unsound. 

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29

Constitutional limits on aggregate statutory damages awards therefore must 

be reserved for circumstances in which a largely punitive per-violation amount 

results in an aggregate that is gravely disproportionate to and unreasonably related 

to the legal violation committed. Were that not so, applying the Williams test to 

reduce aggregated statutory awards would overstep the role of the judiciary and 

usurp the power of the legislature. Legislatures, in designing statutes, decide 

whether to set a floor or a ceiling for damages and often do so expressly in their 

text.10 We are constrained by a statute’s language and interpret statutes with 

awareness that Congress could have enacted limits as to damages, including in 

large class action litigation, provided discretion to courts to award damages within 

a given range, or limited liability in any number of ways. 

In Bateman, for example, we noted that “the [Fair and Accurate Credit 

Transactions Act (“FACTA”)] does not place a cap on . . . damages in the case of 

class actions, does not indicate any threshold at which courts are free to award less 

than the minimum statutory damages, and does not limit the number of individuals 

that can be certified in a class or the number of individual actions that can be 

10 Compare The Fair Debt Collection Practices Act, 15 U.S.C. § 1692k 

(a)(2)(A–B), setting a ceiling for damages of $1,000 per individual and “$500,000 

or 1 per centum of the net worth of the debt collector” if aggregated in a class 

action, with the TCPA, 47 U.S.C. § 227(b)(3)(B), enacting a floor of $500 per 

specified violation and not specifying a cap as to aggregated damages; see also

Alvarez, 697 F.2d at 1339–40 (interpreting the FLCRA, 7 U.S.C. § 2050(a) to 

impose a $500 ceiling on damages per plaintiff per violation).

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30

brought against a single merchant.” 623 F.3d at 718. “In the absence of such 

affirmative steps to limit liability,” we held, “we must assume that Congress 

intended FACTA’s remedial scheme to operate as it was written.” Id. at 722–23. 

As a result, we concluded that to refuse to follow the statute’s text, in that instance 

by limiting class action availability to avoid “‘enormous’ potential liability,” would 

“subvert congressional intent.” Id. at 723. Because the appropriate penalty for 

statutory violations is a legislative decision best left to Congress, courts should 

disregard the plain statutory language directing damages and allowing class action 

and other aggregation only in the most egregious of circumstances.11

In the context of the TCPA, Congress permitted recipients of unsolicited 

telemarketing calls to “recover for actual monetary loss from such a violation, or to 

receive $500 in damages for each such violation, whichever is greater.” 47 U.S.C. 

§ 227(b)(3)(B). Congress thus set a floor of statutory damages at $500 for each 

violation of the TCPA but no ceiling for cumulative damages, in a class action or 

otherwise. Yet, in the mass communications class action context, vast cumulative 

damages can be easily incurred, because modern technology permits hundreds of 

thousands of automated calls and triggers minimum statutory damages with the 

push of a button. 

11 Again, Bateman left open the question whether aggregated statutory 

damages could be subject to constitutional due process limitations. 623 F.3d at 

723.

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31

The district court here did not reduce the $925,220,000 statutory damages 

award in part because there was little Ninth Circuit authority directing a district 

court on how it should analyze damages that may be unconstitutionally excessive

and appropriately reduce them. But Six Mexican Workers does provide some 

guidance, and we have endeavored in this opinion to provide more. Because the 

court did not apply the Williams test or Six Mexican Workers factors to determine 

the constitutionality of the damages award in this case, we remand so the court 

may assess in the first instance, guided by these factors and this opinion, whether 

the aggregate award of $925,220,000 in this class action case is so severe and 

oppressive that it violates ViSalus’s due process rights and, if so, by how much the 

cumulative award should be reduced.

IV

We AFFIRM the district court’s denial of ViSalus’s motions to decertify the 

class, grant judgment as a matter of law, or grant a new trial, and VACATE and 

REMAND the district court’s denial of ViSalus’s post-trial motion challenging the 

constitutionality of the statutory damages award to permit reassessment of that 

question guided by the applicable factors. Each party shall bear its own costs.

AFFIRMED in part; VACATED in part; and REMANDED with instructions.

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