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Notice of FCC Order Granting Waiver to Defendant; Request for Judicial Notice; and Request for Status Conference

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

Christine M. Reilly (pro hac vice)

creilly@manatt.com

John W. McGuinness (pro hac vice)

jmcguinness@manatt.com

MANATT, PHELPS & PHILLIPS LLP 

11355 W. Olympic Blvd 

Los Angeles, CA 90064

Telephone: 310.312.4000

Facsimile: 310.312.4224

John Maston O’Neal (pro hac vice)

john.oneal@quarles.com

Zachary S. Foster (pro hac vice)

zachary.foster@quarles.com

QUARLES & BRADY LLP

Two N. Central Avenue

One Renaissance Square

Phoenix, Arizona 85004-2391

Telephone: 602.229.5200

Facsimile: 602.229.5690

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.

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

NOTICE OF FILING FCC ORDER 

GRANTING WAIVER TO DEFENDANT; 

REQUEST FOR JUDICIAL NOTICE; AND

REQUEST FOR STATUS CONFERENCE

Case 3:15-cv-01857-SI Document 321 Filed 06/14/19 Page 1 of 5
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Notice of FCC Order Granting Waiver to Defendant; Request for Judicial Notice; and Request 

for Status Conference 

2

Defendant, ViSalus, Inc. (“ViSalus”), gives notice of filing the FCC Order granting 

waiver to ViSalus, and pursuant to Rule 201 Federal Rules of Evidence, requests that the Court 

take judicial notice of that Order. 

The Court will recall both from previous briefing and from the briefing and argument on 

Plaintiff's request for enhanced damages that ViSalus obtained consents from its promoters and 

customers. However, in 2012, and effective October 16, 2013, the FCC promulgated new rules 

regarding the form of consent and disclosures required under the TCPA. Although the customers 

and promoters provided consents to ViSalus, they did not meet the technical requirements of the 

FCC’s new rules. Accordingly, on September 14, 2017, ViSalus petitioned the FCC for a waiver 

of the new consent requirements (the "Petition") under the FCC protocols. (Dkt. 296, Defendant's 

Opening Brief Regarding Willfulness and Enhanced Damages, Exhibit "A" thereto). 

Yesterday, June 13, 2019, the FCC approved ViSalus’s Petition and granted ViSalus 

"retroactive waivers [of the consent rules] to calls made on or before October 7, 2015." A copy 

of the FCC's Order granting ViSalus’s Petition (the "Order") is attached as Exhibit "A". Visalus

requests that the Court take judicial notice of and consider the Order when ruling on Plaintiff's 

request for enhanced damages. The Order further demonstrates that enhanced damages are not 

warranted in this case. ViSalus had consent to call Plaintiff and the members of the class which 

– until yesterday – were in a form that did not meet the technical requirements of the FCC’s 

changed regulations. The Order not only reaffirms that ViSalus’s conduct was not the type 

which warrants enhanced damages, but also now demonstrates that ViSalus did not violate the 

TCPA in the manner Plaintiff claims. 

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Notice of FCC Order Granting Waiver to Defendant; Request for Judicial Notice; and Request 

for Status Conference 

3

The Order obviously has implications for other matters before the Court and issues 

central to the case, including class certification, new trial, and others. ViSalus will supplement its 

submissions for the Court on those issues in the near future and as the Court specifies. However, 

given that the Order was just issued and that the Court has not yet ruled on enhanced damages, 

ViSalus has submitted the Order immediately to the Court so it may give it due consideration as 

the Court further considers the issue.

ViSalus also requests that the Court set a status conference to allow the parties to discuss 

with the Court their respective views on the impact of the Order on the case. 

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Notice of FCC Order Granting Waiver to Defendant; Request for Judicial Notice; and Request 

for Status Conference 

4

DATED this 14th day of June, 2019. QUARLES & BRADY LLP

By /s/John Maston O'Neal

John Maston O'Neal (admitted pro hac vice)

john.oneal@quarles.com

Zachary S. Foster (admitted pro hac vice)

zachary.foster@quarles.com

QUARLES & BRADY LLP

101 E. Kennedy Blvd., Ste. 3400

Tampa, FL 33602

Telephone: 813.387.0300

Facsimile: 813.387.1800

MILLER NASH GRAHAM & DUNN LLP

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

josh.sasaki@millernash.com

Nicholas H. Pyle, OSB No. 165175

nicholas.pyle@millernash.com

Telephone: 503.224.5858

Facsimile: 503.224.0155

Christine M. Reilly (pro hac vice)

creilly@manatt.com

John W. McGuinness (pro hac vice)

jmcguinness@manatt.com

MANATT, PHELPS & PHILLIPS LLP 

11355 W. Olympic Blvd 

Los Angeles, CA 90064

Telephone: 310.312.4000

Facsimile: 310.312.4224

Attorneys for Defendant ViSalus, Inc.

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Defendant’s Response in Opposition to Plaintiff’s Request for Enhanced Damages

I hereby certify that I served the foregoing on Plaintiff the foregoing document:

Scott F. Kocher

Stephen J. Voorhees

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

stephen@forumlawgroup.com

Attorneys for Plaintiff

Stefan Coleman

Law Offices of Stefan Coleman, LLC

1309 Jericho Tpke, 2nd Floor

New Hyde Park, NY 11040

Tel: 877.333.9427

Fax: 888.498.8946

E-mail: law@stefancoleman.com

Attorneys for Plaintiff

Rafey S. Balabanian (pro hac vice)

Eve-Lynn Rapp (pro hac vice)

EDELSON PC

123 Townsend Street, Suite 100

San Francisco, CA 94107

Telephone: 415.212.9300

Fax: 415.373.9435

E-mail: rbalabanian@edelson.com

erapp@edelson.com

Attorneys for Plaintiff

Benjamin H. Richman (pro hac vice)

EDELSON PC

350 N. LaSalle Street, 14th Floor

Chicago, IL 60654

Telephone: 312.589.6370

Fax: 21.589.6378

E-mail: brichman@edelson.com

Attorneys for Plaintiff

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

 CM/ECF system transmission.

 E-mail. As required by Local Rule 5.2, any interrogatories, requests for 

production, or requests for admission were e-mailed in Word or WordPerfect 

format, not in PDF, unless otherwise agreed to by the parties.

 Facsimile communication device.

 First-class mail, postage prepaid.

 Hand-delivery.

 Overnight courier, delivery prepaid.

DATED this 14th day of June 2019,

/s/John Maston O'Neal

Attorneys for Defendant ViSalus, Inc.

Case 3:15-cv-01857-SI Document 321 Filed 06/14/19 Page 5 of 5