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

josh.sasaki@millernash.com

Nicholas H. Pyle, OSB No. 165175

Nicholas.pyle@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

Sarah R. Anchors (admitted pro hac vice)

sarah.anchors@quarles.com

QUARLES & BRADY LLP

2 N. Central Ave.

One Renaissance Square

Phoenix, AZ 85004

Telephone: 602.229.5200

Facsimile: 602.229.5690

S. Douglas Knox (admitted pro hac vice)

doug.knox@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

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 RESPONSE IN 

OPPOSITION TO PLAINTIFF'S MOTION 

FOR JURY INSTRUCTION

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Defendant ViSalus, Inc. ("ViSalus") hereby responds in opposition to Plaintiff's Motion 

for Jury Instruction (Doc. 129, the "Motion"). 

LEGAL MEMORANDUM

Introduction

This is a simple issue of Plaintiff erroneously interpreting the relevant statute and 

regulation. Plaintiff's Count II is pursuant to the Telephone Consumer Protection Act ("TCPA") 

and regulation 47 C.F.R. § 64.1200, prohibiting a business from making a call "using . . . an 

artificial or prerecorded voice" to call a cell phone or to "deliver a message" to a residential 

telephone line, under certain circumstances. The statutory language is clear that the prohibition is 

on playing an artificial or prerecorded voice into the call recipient's ear or onto the recipient's 

answering machine;1 that is the harm from which Congress sought to protect consumers. Plaintiff 

asks the Court to ignore the statutory and regulatory words "using" and "deliver a message" and

find that all Plaintiff needs to prove is that ViSalus intended to play a prerecorded message if a live 

person or answering machine responded to the call. That is not the meaning of the unambiguous 

law or the intent of the law, and courts have expressly ruled that Plaintiff's urged interpretation is 

wrong.

I. The TCPA Cannot Be Interpreted to Support Plaintiff’s Position.

A. The Unambiguous Words of the TCPA and Regulation Prohibit Using an 

Artificial or Prerecorded Voice to Deliver a Message.

In construing the provisions of a statute, courts first look to the language of the statute to 

determine whether it has a plain meaning. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 

951 (9th Cir. 2009) (citing McDonald v. Sun Oil Co., 548 F.3d 774, 780 (9th Cir. 2008)). "The 

 1

 This Response uses the term "answering machine" to mean both an answering machine for a 

residential landline and a cell phone voicemail.

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preeminent canon of statutory interpretation requires us to presume that [the] legislature says in a 

statute what it means and means in a statute what it says there. Thus, our inquiry begins with the 

statutory text, and ends there as well if the text is unambiguous." Id. (quoting McDonald, 548 F.3d 

at 780); see also In re Schwartz-Tallard, 803 F.3d 1095, 1101–02 (9th Cir. 2015). Regulations are 

interpreted in the same manner as statutes and thus, where clear, are enforced according to their 

plain meaning. Minnick v. C.I.R., 796 F.3d 1156, 1159 (9th Cir. 2015). 

The relevant part of the TCPA applying to cellular telephones reads as follows:

It shall be unlawful for any person within the United States . . .—

(A) to make any call (other than a call made for emergency purposes 

or made with the prior express consent of the called party) using any 

automatic telephone dialing system or an artificial or prerecorded

voice—

. . .

(iii) to any telephone number assigned to a paging service, 

cellular telephone service . . .;

47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added). The unambiguous words of the statute create two 

distinct prohibitions: (1) using an automatic telephone dialing system ("ATDS")2 to initiate the 

call or (2) using an artificial or prerecorded voice on the call. See id. A call may use an ATDS, 

but then a live person gets on the line, and therefore only the ATDS prohibition is involved in a 

cause of action. Alternatively, a business may use a dialing system that does not qualify as an 

ATDS to initiate the call, and then play an artificial voice or prerecorded message. Plaintiff has 

only alleged a violation of the artificial or prerecorded voice prohibition for telemarketing or 

advertising; not the use of an ATDS. 

The regulation follows the same construction as the statute, and adds that the "prior express 

consent" required for advertising or telemarketing calls is "prior express written consent." It states

 2

 An ATDS means "equipment which has the capacity--(A) to store or produce telephone numbers 

to be called, using a random or sequential number generator and (B) to dial such numbers." 47 

U.S.C. § 227(a)(1). 

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in relevant part:

No person or entity may:

(1) Except as provided in paragraph (a)(2) of this section, initiate 

any telephone call (other than a call made for emergency purposes 

or is made with the prior express consent of the called party) using 

an automatic telephone dialing system or an artificial or prerecorded 

voice;

. . . 

(2) Initiate, or cause to be initiated, any telephone call that includes 

or introduces an advertisement or constitutes telemarketing, using

an automatic telephone dialing system or an artificial or 

prerecorded voice, to any of the lines or telephone numbers 

described in paragraphs (a)(1)(i) through (iii) of this section, other 

than a call made with the prior express written consent of the called 

party . . ..

47 C.F.R. § 64.1200(a) (emphasis added). Like the statute, the unambiguous regulation has two 

prohibitions: the first against using an ATDS and the second on using an artificial or prerecorded 

voice. See id. Plaintiff's claim under Count II and the certified class is under the regulation at 47 

C.F.R. § 64.1200(a)(2), (a)(3), and mirrors the language of the regulation. The certified class are 

those persons "who received a telephone call . . . promoting products or services . . . [using] an 

artificial or prerecorded voice . . . [without] prior express written consent." (Doc. 81, at 14.)

On the other hand, the TCPA does not bar using an ATDS to call a residential telephone 

line. Instead, it only prohibits initiating a call to a residential telephone line "using an artificial or 

prerecorded voice to deliver a message without the prior express consent of the called party." 47 

U.S.C. § 227(b)(1)(B) (emphasis added). The regulation repeats this same language. 47 C.F.R. 

§ 64.1200(a)(3). 

Because the statute and regulation use the words "using" and "deliver a message," a 

plaintiff has a claim against an entity that used an artificial or prerecorded voice only if the voice 

actually played. 

Plaintiff interprets the statute and regulations to mean that any call initiated with the 

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intention to deliver an artificial or prerecorded message constitutes a violated of the TCPA, 

regardless of whether the artificial or prerecorded message is actually delivered. This interpretation 

renders meaningless the words "using" and "to deliver a message" in the statute, and the words 

"using" in the regulation. She also purposefully conflates the concepts of "using" an ATDS with 

"using" an artificial or prerecorded message. Specifically, Plaintiff relies on cases standing for the 

proposition that a person "uses" an ATDS when that person places a call with the equipment, not 

when the call is actually answer, as support for her argument that ViSalus "used" an artificial or 

recorded message upon placing the calls with the intention of delivering those messages.

However, unlike with an ATDS used to actually initiate a call, a person logically cannot "use" an 

artificial or prerecorded message until the message is actually played. The Court should not

disregard the difference the unambiguous statutory language makes in using an ATDS as compared 

to using an artificial or prerecorded voice. Plaintiff's approach contradicts the cannon of 

interpretation: "[A] statute ought, upon the whole, to be so construed that, if it can be prevented, 

no clause, sentence, or word shall be superfluous, void, or insignificant." Duncan v. Walker, 533 

U.S. 167, 174 (2001) (citation and internal quotation marks omitted).

Plaintiff's interpretation would further have this Court ignore the difference in the statutory 

language addressing cell phones as compared to residential landlines. The TCPA bars calls using 

an ATDS to cell phones (under certain circumstances) but does not bar calls to residential landlines 

using an ATDS. 47 U.S.C. § 227(b)(1)(A), (B). "Congress permitted certain types of prerecorded 

voice messages or artificial voice calls to landlines even without the consent of the called party 

but granted no such latitude regarding wireless devices." In the Matter of Dialing Servs., LLC, 29 

FCC Rcd. 5537, 5538 (2014) (comparing 47 U.S.C. § 227(b)(1)(A)(iii) with 47 U.S.C. 

§ 227(b)(1)(B) and 47 U.S.C. § 227(b)(2)(B) (granting the Federal Communications Commission 

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authority to adopt additional exemptions to liability for autodialed calls to landlines). Making it a 

violation of the law to call a residential landline with merely the intent to use a prerecorded 

message if a voice or answering machine is detected would essentially make it a violation of the 

law to call a residential landline using an ATDS. Congress has specifically not prohibited such 

calls. See id.; see also In the Matter of Rules & Regulations Implementing the Tel. Consumer 

Prot. Act of 1991, 7 F.C.C. Rcd. 8752, 8755 (1992) ("We emphasize that the term autodialer does 

not include the transmission of an artificial or prerecorded voice."). 

Additionally, Plaintiff's interpretation contradicts congressional intent. Congress stated 

that its intent was to attempt to remedy the harm that consumers felt they suffered when receiving 

certain automated or prerecorded messages. Pub. L. 102–243, § 2, 105 Stat. 2394 (1991) (found 

as a note to 47 U.S.C. § 227(10)) ("Evidence compiled by the Congress indicates that residential 

telephone subscribers consider automated or prerecorded telephone calls, regardless of the content 

or the initiator of the message, to be a nuisance and an invasion of privacy.").3

Finally, Plaintiff's interpretation contradicts Article III standing, which requires that the 

suffered injury be fairly traceable to the challenged conduct of the defendant. See Spokeo, Inc. v. 

Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 

(1992)). The challenged conduct here is the use of a prerecorded message or artificial voice. The 

"harm" is the delivery of that message or voice to the call recipient's ear or onto his/her answering 

 3

 Plaintiff cites to In the Matter of Implementation of the Middle Class Tax Relief & Job Creation 

Act of 2012, 27 F.C.C. Rcd. 13615, 13649 (2012), but that statement about "millions of Americans 

..." was about the implementation of the Do-Not-Call list, which is not the basis of Plaintiff's Count 

II. Plaintiff conveniently leaves out the beginning of the quote, which is a statement of a single 

commissioner: "Nearly a decade ago, the [FCC] was at the forefront of developing the first 

national Do-Not-Call list. It has been an out-and-out success. Consumers have signed up more 

than 209 million phone numbers. That means millions of Americans . . . . " Id. The 

Commissioner's comments were to introduce a list to prevent calls to 911 centers. Id. It has 

nothing to do with Plaintiff's claims.

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machine or voicemail. This is different from the "harm" for a violation of the TCPA provision 

barring use of an ATDS. See Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1043 

(9th Cir. 2017) (addressing the harm of unsolicited phone calls and text messages delivered by an 

ATDS). 

B. Courts Have Held that TCPA Liability Only Accrues if a Prerecorded 

Message Played.

The Fifth Circuit addressed this very issue in Ybarra v. Dish Network, L.L.C., 807 F.3d 

635 (5th Cir. 2015). DISH used a system that played a prerecorded message if it detected a human 

voice or recorded voicemail greeting. Id. at 637. DISH contended that the district court erred in 

holding that it violated the TCPA in making calls that did not result in a prerecorded voice being 

used because no prerecorded voice was played as there was no live person or answering machine 

that responded to the call. Id. at 640. In agreeing with DISH and reversing the district court ruling, 

the Circuit stated:

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 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 (emphasis added). Thus, the Court held as follows: 

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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 (emphasis added)4

; see also Morris v. Unitedhealthcare Ins. Co., No. 4:!5-cv-00638, 

2016 WL 7115973, at *7 (E.D. Tex. Nov. 9, 2016) (relying in Ybarra, and holding that plaintiff's 

"mere speculation that an artificial or prerecorded voice may have played had he answered the 

calls is insufficient" to defeat summary judgment."); Roberts v. Medco Health Sols., Inc., No. 4:15-

CV-1368, 2016 WL 3997071, at *2 (E.D. Mo. July 26, 2016) (relying on Ybarra, and holding that 

calls that were blocked by the plaintiff's phone such that it did not go through to voicemail did not 

constitute violations of the TCPA, "[b]ecause a call in which a prerecorded voice 'might, but does 

not, play' does not trigger violation of the TCPA"); Abramson v. Caribbean Cruise Line, Inc., No. 

2:14-cv-00435, 2014 WL 2938626, at *4 (W.D. Pa. June 30, 2014) (dismissing claim as to a call 

wherein no verbal communication was delivered, and the plaintiff hung up, because her claim that 

she believed the defendant intended to deliver a prerecorded message during that call was 

insufficient to allege a violation of the TCPA). Accord Susinno v. Work Out World, Inc., 862 F.3d 

346, 351-52 (3rd Cir. 2017) (receipt of a single prerecorded telephone call was "the very harm that 

Congress sought to prevent" in the TCPA and was thereby "a concrete, albeit intangible, harm").

II. Plaintiff’s Removal of Calls Where The Telephone Rang Without an Answer Does 

Not Mean That A Prerecorded Message Was Delivered to All Remaining Class 

Members.

Plaintiff contends that all of the noticed class member received artificial or prerecorded 

 4

 In Aranda v. Caribbean Cruise Line, Inc., the court cited Ybarra, but explained that the case was 

different because in Aranda the evidence was that "every call [to the plaintiffs] included a 

prerecorded message." 179 F. Supp. 3d 817, 824-25 (N.D. Ill. 2016) (emphasis added).

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messages because, during the class notice process, she removed all calls where ViSalus's 

documents definitively showed that the call was not answered or did not go to an answering 

machine. This is a logical fallacy. Using the disposition codes in ViSalus's records, Plaintiff 

apparently culled all individuals that could not have heard a prerecorded message (e.g, they went 

unanswered or never connected). However, this in no way ensures that the remaining set of class 

members all actually heard the relevant message. 

For each marketing calling campaign at issue, ViSalus has a "contact sheet", which is an 

Excel spreadsheet listing the person called, the person's ViSalus account number, and the person's 

telephone number. The contact sheets each have a title that corresponds to the campaign, such as 

a campaign to promote a particular new product or a campaign to "win back" customers who have 

not placed orders for a period of time. Some of the contact sheets have "disposition codes" that 

state the result of the call, such as whether an answering machine responded, the call rang without 

being picked up, or a live person answered. But some of the contact sheets do not have disposition 

codes. Therefore it will be Plaintiff's burden to establish by a preponderance of the evidence that 

those calls indeed resulted in someone picking up the phone or an answering machine responding 

such that an artificial or prerecorded voice could have played. 

Additionally, even for contact sheets that do have disposition codes, ViSalus does not have 

records of whether the telephone system was programmed for that calling campaign to play a 

prerecorded message if an answering machine was detected. It will be Plaintiff's burden to prove 

by a preponderance of the evidence that ViSalus did play a prerecorded message if an answering 

machine responded, for all of the calling campaigns. 

Due Process and the Rules Enabling Act mandate that Plaintiff prove all elements of her 

claim as to all of the class members. See Deposit Guar. Nat. Bank, Jackson, Miss. v. Roper, 445 

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U.S. 326, 332 (1980) ("[T]he right of a litigant to employ Rule 23 is a procedural right only, 

ancillary to the litigation of substantive claims."); see also Vaquero v. Ashley Furniture Indus., 

Inc., 824 F.3d 1150, 1155-56 (9th Cir. 2016) (stating that the Rules Enabling Act prohibition on a 

procedural rule abridging, enlarging or modifying a substantive right applies to Rule 23). "Because 

it is no more than a claim aggregation device, Rule 23 has no effect on the substance of the claims 

or plaintiffs' burden of proof [citing 28 U.S.C. § 2072(b) and Wal-Mart Stores, Inc. v. Dukes, 564 

U.S. 338, 367 (2011)], and consequently each member in a class must have a potentially viable 

claim." Parsons v. Ryan, 784 F.3d 571, 575 (9th Cir. 2015). Elements of the claim – particularly, 

whether an artificial or prerecorded voice was actually used and delivered – cannot be presumed 

just because this is a class action. The jury cannot render an aggregate class judgment against 

ViSalus unless it determines ViSalus is liable for each individual constituent class members' 

claims. ViSalus cannot be liable for an individual class member's claim unless ViSalus actually 

delivered the prerecorded message. Therefore, the jury cannot render an aggregate judgment 

against ViSalus unless it determines that ViSalus delivered a prerecorded message to each class 

member.

III. Plaintiff’s cases do not support her position.

Plaintiff relies on Satterfield, but that case addressed whether a text message is a "call"

under the TCPA, and did not address a prerecorded message or artificial voice being delivered. 

569 F.3d at 953-55. 

Moore v. Dish Network L.L.C., 57 F. Supp. 3d 639, 655-56 (N.D. W. Va. 2014) focused 

on whether the defendant violated the TCPA by using an ATDS; not because it used a prerecorded 

message or artificial voice. DISH used its dialer system to make all of the disputed calls, and 

played a prerecorded message for some of the calls. Id. at 642. DISH argued that it was not liable 

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because the dialer was not an ATDS. Id. at 651. Moore countered that the dialer was a predictive 

dialer, which the FCC had interpreted to be an ATDS. Id. The court held that predictive dialer is 

an ATDS under the FCC's interpretation, and that DISH's dialer was an ATDS. Id. at 653, 655. 

Therefore, whether a prerecorded message was played was not part of the court's ruling. Fillichio 

v. M.R.S. Associates, Inc., 2010 WL 4261442, at *3 (S.D. Fla. Oct. 19, 2010) is likewise 

inapplicable because it only addressed calls using an ATDS. The ruling does not even use the 

word "prerecorded" or "artificial."

Hinman v. M & M Rental Ctr., Inc., 596 F. Supp. 2d 1152, 1159 (N.D. Ill. 2009) does not 

apply because it addressed an entirely different part of the TCPA – the provisions regarding 

sending unsolicited faxes. Plaintiff relies on the case’s statement that the TCPA bars sending the 

unsolicited fax, and makes no reference to the receipt of the fax. In contrast, the TCPA provision 

at issue here does refer to "using" and "delivering" an artificial or prerecorded voice. 

Van Patten, 847 F.3d 1037, addressed whether the plaintiff had standing for the TCPA 

claim for text messages. That decision was limited to addressing the text messages as using an 

ATDS, and focused on whether the plaintiff consented to the text messages. It did not address this 

issue encountered head-on in Ybarra, the difference in harm and proof needed for a claim that a 

call violated the TCPA by using a prerecorded message or artificial voice, as opposed to an ATDS. 

Likewise, in Lee v. Stonebridge Life Ins. Co., 289 F.R.D. 292, 293 (N.D. Cal. 2013), the complaint 

had a single claim under the TCPA, that the defendant violated the statute by sending text 

messages, without prior consent, using an ATDS. Again, the case did not address what Plaintiff 

claims -- that ViSalus violated the TCPA by using a prerecorded message or artificial voice.

Plaintiff misplaces her reliance on Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 

2017), a non-TCPA case that addressed whether a cooking oil was mislabeled "100% Natural." 

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But she ignores a major difference. In that case, the Ninth Circuit explained that the inability to 

ascertain all of the class members was not a concern because the class members could self-identify 

through an affidavit process. The imagined affidavits were not going to be used to determine 

ConAgra's actual liability (i.e., the size of their actual judgment), but instead used to determine 

whether an individual was entitled to receive a portion of the total class award. A product labeling 

trial, the jury would presumably be asked to decide: (1) was the packaging misleading and (2) if 

so, what was the damage per unit sold. Then, to assess total liability, the jury would multiply 

number of units sold by damage per unit. The total number would be the total class fund. The 

self-reporting consumers would then submit claims from that pot in the administrative phase. 

We agree with the Seventh Circuit that, in cases in which aggregate 

liability can be calculated in such a manner, "the identity of 

particular class members does not implicate the defendant's due 

process interest at all" because "[t]he addition or subtraction of 

individual class members affects neither the defendant's liability nor 

the total amount of damages it owes to the class." Mullins [v. Direct 

Digital, LLC], 795 F.3d [654] at 670 [(7th Cir. 2015)]; see also Six 

(6) Mexican Workers [v. Ariz. Citrus Growers], 904 F.2d [1301] at 

1307 [(9th Cir. 1990)] ("Where the only question is how to distribute 

damages, the interests affected are not the defendant's but rather 

those of the silent class members."). The defendant will generally 

know how many units of a product it sold in the geographic area in 

question, and if the defendant is ultimately found to have charged, 

for example, 10 cents more per unit than it could have without the 

challenged sales practice, the aggregate amount of liability will be 

determinable even if the identity of all class members is not.

Briseno, 844 F.3d at 1132. Therefore, the identification of class members did not affect the 

defendant’s liability. Id. That is not true in every case, the court stated. Id.

Here, Plaintiff would have class members submitting affidavits to prove actual elements of 

the TCPA claim and it would affect ViSalus’s aggregate liability. Unlike in Briseno, adding or 

removing class members affects both ViSalus’s liability and the total damages a jury may 

determine it owes. 

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Further, where Briseno discussed using the affidavits to prove class member claims, it 

contemplated using them at trial, not after trial and a judgment, as Plaintiff proposes.

If the concern is that claimants in cases like this will eventually 

offer only a "selfserving affidavit" as proof of class membership, it 

is again unclear why that issue must be resolved at the class 

certification stage to protect a defendant's due process rights. If a 

Wesson oil consumer were to pursue an individual lawsuit instead 

of a class action, an affidavit describing her purchases would create 

a genuine issue if ConAgra disputed the affidavit, and would prevent 

summary judgment against the consumer. See Mullins, 795 F.3d at 

669; accord FED. R. CIV. P. 56(c)(1)(A). Given that a consumer's 

affidavit could force a liability determination at trial without 

offending the Due Process Clause, we see no reason to refuse class 

certification simply because that same consumer will present her 

affidavit in a claims administration process after a liability 

determination has already been made.

Id. at 1132. 

Finally, Plaintiff’s reliance on Booth v. Appstack, Inc., No. C13-1533JLR, 2016 WL 

3030256, at *1 (W.D. Wash. May 25, 2016), order clarified, 2016 WL 3620798 (W.D. Wash. June

28, 2016) is misplaced because that case involved expert evidence that the call recipient actually 

received the prerecorded message. The plaintiffs’ expert examined the call data and determined 

that the defendant "placed 601,207 robocalls to 90,163 unique cellular numbers." Id. at *3. He 

excluded calls "within 6 seconds or less because in his opinion such a short duration indicates that 

"the called party answered and immediately hung up or an answering machine was detected and 

the dialer immediately hung up on the call." Id. at *3 n. 4. Presumably, this would give the jury 

sufficient evidence to render an aggregate verdict because it could decide: (1) whether each dialed 

number was a cell phone and (2) whether the person actually received the pre-recorded message. 

See id. Therefore, the post-verdict identification is to determine whether a class member can take 

from the common fund would not affect the total exposure. Booth is easily distinguishable because 

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Plaintiff has no comparable evidence that the call recipients actually received the prerecorded 

message, and she claims she does not even after to make any such showing. 

III. Conclusion.

For the foregoing reasons, ViSalus respectfully requests that the Court deny Plaintiff's 

Motion for Jury Instruction. 

DATED this 18th day of July, 2018.

QUARLES & BRADY LLP

By /s/ Sarah R. Anchors

Sarah R. Anchors (pro hac vice)

sarah.anchors@quarles.com

S. Douglas Knox (pro hac vice)

doug.knox@quarles.com

Zachary S. Foster (pro hac vice)

zachary.foster@quarles.com

Telephone: 602.229.5200

Facsimile: 602.229.5690

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

Attorneys for Defendant ViSalus, Inc.

Case 3:15-cv-01857-SI Document 136 Filed 07/18/18 Page 14 of 15
15

Certification of Service

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)

Stewart R. Pollock (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

rpollock@edelson.com

Attorneys for Plaintiff

Benjamin H. Richman (pro hax 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 18th day of July, 2018.

/s/ Sarah R. Anchors

Attorneys for Defendant ViSalus, Inc.

Case 3:15-cv-01857-SI Document 136 Filed 07/18/18 Page 15 of 15