DOVEL & LUNER, LLP

Simon Franzini, Cal. Bar #287631*

simon@dovel.com

Gregory S. Dovel, Cal. Bar #135387*

greg@dovel.com

Jonas Jacobson, Cal. Bar #269912*

jonas@dovel.com

201 Santa Monica Blvd., Suite 600

Santa Monica, California 90401

Tel: (310) 656-7066

Fax: (310) 656-7069

(additional counsel listed on next page)

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

LORI WAKEFIELD, individually and 

on behalf of a class of others similarly 

situated, 

 Plaintiff,

 v.

VISALUS, INC.,

a Nevada corporation,

 Defendant.

No. 3:15-cv-01857-SI

Plaintiff’s supplemental brief in 

opposition to ViSalus’ motion to 

decertify.

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 1 of 27
EDELSON PC

Rafey S. Balabanian, ILB #6285687*

rbalabanian@edelson.com

Eve-Lynn J. Rapp, ILB #6300632*

erapp@edelson.com

Lily E. Hough, SBN #315277*

lhough@edelson.com

123 Townsend Street, Suite 100

San Francisco, California 94107

Tel: (415) 212-9300

Fax: (415) 373-9435

FORUM LAW GROUP

Scott F. Kocher, OSB #015088

Stephen J. Voorhees, OSB #150595

811 S.W. Naito Parkway, Suite 420

Portland, Oregon 97204

Tel/Fax: (503) 445-2120

* admitted pro hac vice

Attorneys for Plaintiff Wakefield and the Certified Class

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 2 of 27
i

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

Table of Contents

I. Ms. Wakefield has Article III standing. ................................................................... 1

A. If ViSalus had consent to call Ms. Wakefield, this would not deprive 

Ms. Wakefield of Article III standing. .......................................................... 2

B. ViSalus did not have consent to call Ms. Wakefield—even under the 

pre-2013 standard. ......................................................................................... 6

II. This case continues to satisfy each of the requirements of Rule 23......................... 9

A. Because ViSalus did not raise a consent defense in this case or 

present one at trial, the Court cannot and need not consider consent 

in deciding class certification........................................................................ 9

1. The Court must decide class certification based on the claims, 

defenses, and evidence actually raised in this case and 

presented at trial. .............................................................................. 10

2. There is no consent defense in this case because ViSalus 

never raised a consent defense (and instead repeatedly 

disclaimed this defense.) .................................................................. 12

B. If ViSalus had raised and presented a consent defense, this defense 

would not be a reason to decertify the class (and would instead 

confirm that this class should proceed as a class action). ........................... 15

C. The FCC’s waiver is irrelevant to ViSalus’ consent defense, because 

it does not apply to any of the claims asserted in this case. ........................ 19

III. Conclusion.............................................................................................................. 20

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 3 of 27
ii

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

Table of Authorities

Cases

Bah. Surgery Ctr., LLC v. Kimberly-Clark Corp., No. 14-cv-8390 DMG (PLAx),

2018 U.S. Dist. LEXIS 139931 (C.D. Cal. Mar. 30, 2018)........................................... 12

Brodsky v. Humanadental Ins. Co.,

269 F. Supp. 3d 841 (N.D. Ill. 2017)............................................................................. 21

Craftwood II, Inc. v. Generac Power Sys.,

920 F.3d 479 (7th Cir. 2019) .......................................................................................4, 5

Davis v. Guam,

785 F.3d 1311 (9th Cir. 2015) ......................................................................................... 3

Forehand v. Fla. State Hosp.,

89 F.3d 1562 (11th Cir. 1996) ....................................................................................... 12

Harmsen v. Smith,

693 F.2d 932 (9th Cir. 1982) ........................................................................................... 3

Key v. Gillette Co.,

782 F.2d 5 (1st Cir. 1986).............................................................................................. 12

Lierboe v. State Farm Mut. Auto. Ins. Co.,

350 F.3d 1018 (9th Cir. 2003) ......................................................................................... 7

Mazzei v. Money Store,

829 F.3d 260 (2d Cir. July 15, 2016).......................................................................12, 14

McVey v. McVey,

26 F. Supp. 3d 980 (C.D. Cal. 2014)............................................................................... 4

Meyer v. Portfolio Recovery Assocs., LLC,

707 F.3d 1036 (9th Cir. 2012) ....................................................................................... 20

Min Sook Shin v. Umeken USA, Inc.,

No. 17-56767, 2019 U.S. App. LEXIS 16588 (9th Cir. June 3, 2019) ........................... 6

Moore v. Ulta Salon, Cosmetics & Fragrance Inc.,

311 F.R.D. 590 (C.D. Cal. 2015)................................................................................... 14

Nei Contracting & Eng'g v. Hanson Aggregates, Inc., No. 12-cv-01685-BAS(JLB),

2016 U.S. Dist. LEXIS 60624 (S.D. Cal. May 5, 2016) ............................................... 21

Perryman v. Litton Loan Servicing, LP, No. 14-cv-02261-JST,

2014 U.S. Dist. LEXIS 140479 (N.D. Cal. Oct. 1, 2014) ............................................... 4

Physicians Healthsource, Inc. v. Stryker Sales Corp.,

65 F. Supp. 3d 482 (W.D. Mich. 2015)......................................................................... 23

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 4 of 27
iii

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

Rissetto v. Plumbers & Steamfitters Local 343,

94 F.3d 597 (9th Cir. 1996) .......................................................................................9, 10

Sandusky Wellness Ctr., Ltd. Liab. Co. v. ASD Specialty Healthcare, Inc., 

No. 3:13-cv-2085, 2016 U.S. Dist. LEXIS 1864 (N.D. Ohio Jan. 7, 2016).................. 22

Sandusky Wellness Ctr., Ltd. Liab. Co. v. ASD Specialty Healthcare, Inc.,

863 F.3d 460 (6th Cir. 2017) ......................................................................................... 22

Satterfield v. Simon & Schuster,

569 F.3d 946 (9th Cir. 2009) ............................................................................................ 8

Simon v. Healthways, Inc., No. 14-cv-08022-BRO (JCx),

2015 U.S. Dist. LEXIS 176179 (C.D. Cal. Dec. 17, 2015)........................................... 21

Snider Int’l Corp. v. Town of Forest Heights,

906 F. Supp. 2d 413 (D. Md. 2012)................................................................................. 6

Taylor v. Hous. Auth. of New Haven,

267 F.R.D. 36 (D. Conn. 2010), .................................................................................... 13

Toney v. Quality Res., Inc.,

323 F.R.D. 567 (N.D. Ill. 2018)..................................................................................... 19

Torres v. Mercer Canyons, Inc.,

835 F.3d 1125 (9th Cir. 2016) ....................................................................................... 23

Torres v. SGE Mgmt., LLC,

838 F.3d 629 (5th Cir. 2016) ......................................................................................... 14

True Health Chiropractic, Inc. v. McKesson Corp.,

896 F.3d 923 (9th Cir. 2018) ..................................................................................passim

Van Patten v. Vertical Fitness Grp., Ltd. Liab. Co.,

847 F.3d 1037 (9th Cir. 2017) .................................................................................2, 3, 8

Yeoman v. Ikea U.S.A. W., Inc., No. 11-cv-00701-BAS(BGS),

2014 U.S. Dist. LEXIS 168968 (S.D. Cal. Dec. 4, 2014) ............................................. 13

Statutes

47 U.S.C. 227(b)(1)(A)...................................................................................................... 19

47 U.S.C. 227(b)(3)........................................................................................................... 20

Other Authorities

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

27 F.C.C. Rcd. 1830 (2012)............................................................................................. 7

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

30 F.C.C. Rcd. 7961 (2015).....................................................................................15, 17

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 5 of 27
iv

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

Rules

Fed. R. Civ. P. 59............................................................................................................... 14

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 6 of 27
1

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

The FCC’s order granting ViSalus’ petition for a retroactive waiver cannot 

possibly deprive Ms. Wakefield of Article III standing and has no impact on the Rule 23

analysis. Accordingly, it has no relevance to ViSalus’ pending motion to decertify the 

class. The Court should deny the motion and enter judgment in favor of the class based 

on the jury’s verdict. 

I. Ms. Wakefield has Article III standing. 

ViSalus contends that, under the pre-2013 consent standard, it had prior express 

consent to make prerecorded telemarketing calls to Ms. Wakefield. ViSalus argues that 

this deprives Ms. Wakefield of Article III standing (and that as a result, this Court lacks 

subject matter jurisdiction over this case).

 ViSalus frames the issue as a challenge to Article III standing because ViSalus 

never raised a consent defense in this case and instead expressly waived it. 

Accordingly—unless ViSalus can call into question the Court’s subject matter 

jurisdiction—ViSalus would have no basis to raise it for the first time now, in a post-trial 

motion to decertify. 

ViSalus’ consent defense, however, has nothing to do with Article III standing and 

could not possibly deprive the Court of subject matter jurisdiction. It is simply an 

affirmative defense, which ViSalus waived by failing to raise it sooner.

Moreover, if ViSalus had raised a consent defense, the defense would have failed 

because ViSalus never obtained consent to make prerecorded telemarketing calls to Ms. 

Wakefield—even under the pre-2013 express consent standard.

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 7 of 27
2

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

A. If ViSalus had consent to call Ms. Wakefield, this would not deprive 

Ms. Wakefield of Article III standing.

Article III standing is satisfied if the plaintiff alleges that he or she “(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.” Van Patten v. Vertical 

Fitness Grp., Ltd. Liab. Co., 847 F.3d 1037, 1042 (9th Cir. 2017) (internal citations and 

punctuation omitted).

Here—as the Court has already concluded—because Ms. Wakefield alleged that 

she received unsolicited telephone calls that used an artificial or prerecorded voice from 

ViSalus, she has Article III standing. Dkt. 81 (Certification Order), 12-13 (relying on 

Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037, 1043 (9th Cir. 2017). 

Moreover, Ms. Wakefield presented uncontradicted evidence at trial that she did, in fact, 

receive unsolicited telephone calls that used an artificial prerecorded voice from ViSalus

(as did other members of the class.) See, e.g., Dkt. 302 (April 1 trial transcript), 191:7-

196:4 (Mr. Eves, COO of Ms. Wakefield’s phone company, testifying that Ms. Wakefield 

received five calls from ViSalus); id., 224:12-243:2 (Ms. Wakefield testifying about the 

calls she received from ViSalus); id., 321:2-324:7 (Mr. Gidley admitting that ViSalus 

called Ms. Wakefield using a prerecorded message); Trial Exhibit 43-24 (recorded 

message that Mr. Gidley admitted ViSalus used on a phone call to Ms. Wakefield); Trial 

Exhibit 2 (Ms. Wakefield’s phone records showing five phone calls from ViSalus). 

ViSalus contends that, if the pre-2013 standard applied in this case, it would have 

an express consent affirmative defense against Ms. Wakefield. But standing turns on the 

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 8 of 27
3

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

plaintiff’s allegations—not on the merits of the plaintiff’s claims (or the defendant’s 

defenses). Davis v. Guam, 785 F.3d 1311, 1316 (9th Cir. 2015) (“These are merits 

questions, and standing doesn't “depend[] on the merits of the plaintiff’s contention that 

particular conduct is illegal.”) 1; Van Patten v. Vertical Fitness Grp., Ltd. Liab. Co., 847 

F.3d 1037, 1043 (9th Cir. 2017) (concluding that the plaintiff had Article III standing 

because he had “alleged a concrete injury in fact” under the TCPA before turning to the 

merits of the defendants’ prior express consent defense); Harmsen v. Smith, 693 F.2d 

932, 943 (9th Cir. 1982) (“Standing ordinarily does not depend upon the merits of a 

plaintiff’s contentions; the requirement is based upon a separate determination that the 

plaintiffs have made allegations of demonstrable, particularized injury. As we have 

stated, failure of proof as to the named plaintiffs would not bar maintenance of the class 

action or entry of judgment awarding relief to the members of the class.” (internal 

quotations and citations omitted)); McVey v. McVey, 26 F. Supp. 3d 980, 995 (C.D. Cal. 

2014) (“the fact that the plan at issue is not ERISA qualifie[d] means that plaintiff's 

claims fail on the merits, but does not deprive the court of subject matter jurisdiction”); 

Perryman v. Litton Loan Servicing, LP, No. 14-cv-02261-JST, 2014 U.S. Dist. LEXIS 

140479, at *17 n.4 (N.D. Cal. Oct. 1, 2014) (rejecting the argument that “because . . . [the 

plaintiff] loses on the merits, he has not suffered any 'cognizable injury that is traceable 

to the acts of the . . . defendants and he lacks standing to sue them” because “standing is 

fundamentally about the propriety of the individual litigating a claim irrespective of its 

legal merits.” (internal quotations omitted)).

 1 All emphasis is added unless otherwise noted. 

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 9 of 27
4

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

And as a result, a defendant cannot deprive a plaintiff of Article III standing—and 

thereby divest the presiding court of subject matter jurisdiction—by prevailing on an 

affirmative defense. Prevailing on an affirmative defense simply results in the defendant 

winning on the merits and obtaining a favorable judgment. Craftwood II, Inc. v. Generac 

Power Sys., 920 F.3d 479, 481 (7th Cir. 2019) (reversing district court decision that the 

plaintiff lacked standing to bring TCPA claim based on a consent defense reasoning as 

follows: “On appeal defendants contend expressly what is only implicit in the district 

court’s decision: that unless plaintiffs prove injury from a violation of law, the suit must 

be dismissed for lack of a case or controversy. That proposition contradicts the holding 

of Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946), among many other 

decisions showing that a plaintiff's failure on the merits does not divest a federal court of 

jurisdiction.”)

Accordingly, if ViSalus were right that it has a consent defense against Ms. 

Wakefield’s claims—and if it had actually raised this defense in its answer and presented 

it at trial (which it did not)—it would not follow that Wakefield lacks standing and the

Court lacks subject matter jurisdiction. The result would be a judgment in favor of 

ViSalus on Ms. Wakefield’s claims, just like any other time a defendant prevails on an 

affirmative defense. 2

 2 Notably, under controlling law, if ViSalus had prevailed on its claims against 

Ms. Wakefield on the merits, that would not defeat the class’ claims. See dkt. 264

(Wakefield brief regarding verdict form).

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 10 of 27
5

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

ViSalus’ suggestion to the contrary does not make sense. If ViSalus were right, 

then a presiding court would lose power to adjudicate the dispute in front of it any time a 

defendant prevailed on an affirmative defense. There would be no such thing as a 

defense judgment based on an affirmative defense; courts would have to dismiss cases for 

lack of subject matter jurisdiction any time an affirmative defense succeeded. But that is 

not the law. Indeed, the Supreme Court rejected this exact proposition in Bell v. Hood, 

which holds that the failure of a claim for relief requires a judgment on the merits—not a 

jurisdictional dismissal. 327 U.S. at 682; Craftwood II, Inc. v. Generac Power Sys., 920 

F.3d 479, 481 (7th Cir. 2019) (noting that this argument “contradicts the holding of Bell 

v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946), among many other decisions 

showing that a plaintiff's failure on the merits does not divest a federal court of 

jurisdiction.”); see Snider Int’l Corp. v. Town of Forest Heights, 906 F. Supp. 2d 413, 

424 (D. Md. 2012) (to “transform affirmative defenses ... into jurisdictional components 

of Article III standing ... would be a broad departure from current federal practice”).

None of the cases ViSalus cites suggests otherwise. In those cases, the class 

actions were dismissed because the plaintiff actually lacked standing—i.e., because there 

was no case or controversy—not because the plaintiff lost on the merits. In the Min Sook

case, the plaintiff sought injunctive relief against false advertising, but the district court 

found—based on the plaintiff’s allegations—that the plaintiff would not purchase the 

relevant product in the future, and thus lacked standing to seek injunctive relief. Min 

Sook Shin v. Umeken USA, Inc., No. 17-56767, 2019 U.S. App. LEXIS 16588, at *2 (9th 

Cir. June 3, 2019). In other words, the class action was dismissed because the plaintiff 

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 11 of 27
6

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

failed to establish the required injury, not because the claim failed on the merits. 

Likewise, in the Lierboe case, the named plaintiff had not established “the requisite of a 

case or controversy with the defendants” in the first place with respect to the standing 

claim because, under controlling Montana law, the facts alleged did not constitute 

impermissible stacking. Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 

(9th Cir. 2003).

In sum, ViSalus’ consent defense has nothing to do with Article III standing and 

cannot possibly divest the Court of subject matter jurisdiction over this case. As a result, 

ViSalus cannot raise this defense for the first time in a post-trial motion to decertify. To 

present this defense, ViSalus would have had to raise it in its answer; produce evidence 

supporting it during discovery; and introduce that evidence and persuade the jury of the 

merits of the defense based on that evidence at trial. But ViSalus did no such thing. To 

the contrary, as explained in greater detail below, ViSalus did the exact opposite: it failed 

to raise the defense in its answer; failed to produce (and instead resisted providing) 

discovery supporting such a defense; affirmatively represented that it would not be 

pursuing this defense at trial; and did not present any evidence supporting this defense at 

trial.

B. ViSalus did not have consent to call Ms. Wakefield—even under the 

pre-2013 standard.

ViSalus contends that under the pre-2013 standard, “[p]rior express consent is 

easily satisfied here because Plaintiff voluntarily provided her telephone number to 

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 12 of 27
7

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

ViSalus when she submitted a promoter application.” ViSalus Supplemental Brief, 5. 

This argument fails on three levels.

(1) ViSalus’s argument is foreclosed by governing law. As the FCC has 

acknowledged, prior to 2013 written consent had to “‘clearly express[] an understanding 

that the telemarketer's subsequent call will be made for the purpose of encouraging the 

purchase or rental of, or investment in, property, goods or services.’” In re Rules & 

Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C. Rcd. 1830, 

1833 (2012). Likewise, the Ninth Circuit has held that consent must be “clearly and 

unmistakably stated.” Satterfield v. Simon & Schuster, 569 F.3d 946, 955 (9th Cir. 2009). 

Thus, a consumer’s provision of her telephone number to a defendant does not amount to 

consent “to any and all contact.” Van Patten, 847 F.3d at 1045. In other words, ViSalus 

is flat wrong that Ms. Wakefield provided consent to receive telemarketing solicitations 

simply by providing her phone number to ViSalus.

(2) ViSalus’ argument is also foreclosed by judicial estoppel. “Judicial estoppel, 

sometimes also known as the doctrine of preclusion of inconsistent positions, precludes a 

party from gaining an advantage by taking one position, and then seeking a second 

advantage by taking an incompatible position.” Rissetto v. Plumbers & Steamfitters

Local 343, 94 F.3d 597, 600 (9th Cir. 1996). Judicial estoppel applies to statements made 

in administrative proceedings as well as judicial proceedings. Id. at 604 (judicial 

estoppel applies in district court when “plaintiff's prior position was taken in a workers’ 

compensation [administrative] proceeding”).

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 13 of 27
8

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

In its Petition for retroactive waiver to the FCC, ViSalus (a) expressly admitted 

that even before 2013, written consent “must be to receive a marketing call” and (b) 

asserted it had such consent to place calls to class members. Dkt. 177-1 (ViSalus petition 

for waiver) at 4 (“Before the Commission’s 2012 rule revisions, consumers could give 

‘prior express consent’ orally or in writing, and no particular ‘magic language’ was 

required for such consent (other than the consent must be to receive a marketing call).” 

Moreover, ViSalus made these assertions to gain an advantage before the FCC. 

To persuade the FCC that under the circumstances ViSalus should be given a retroactive 

waiver, ViSalus asserted that the pre-2013 rules required that it merely have written 

consent “to receive a marketing call” and that it had obtained such consent.

Now, to obtain an advantage in its motion to decertify the class, ViSalus takes an 

incompatible position—that it does not need to show that the consent it received was for 

marketing calls. ViSalus Supplemental Brief, 4. Moreover, the reason for ViSalus’ 

change of tune is that its representations to the FCC were false—it indisputably did not 

receive consent “to receive a marketing call” for each call it made to class members, as 

the evidence this Court has before it demonstrates. Judicial estoppel forecloses ViSalus 

from “seeking a second advantage” before this Court by asserting this “incompatible” 

position. Risetto, 343, 94 F.3d at 600.

(3) ViSalus acknowledges that providing a phone number to a company does not 

qualify as “prior express consent” to receive prerecorded telemarketing calls if it is 

accompanied by “instructions to the contrary.” Supplemental Brief, 5. And undisputed 

evidence at trial demonstrated that Ms. Wakefield did exactly this: in the very same

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 14 of 27
9

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

promoter application in which she provided her number to ViSalus, she affirmatively 

stated that she did not want to be contacted by ViSalus by phone. Dkt. 302 (April 11, 

2019 Trial Transcript), 83:22-84:11. And what’s more, Ms. Wakefield testified that she 

told ViSalus to stop calling her. Id. 103:4-21 (testifying that she told ViSalus to stop 

calling her on April 8.) But ViSalus kept calling her anyway. See Trial Exhibit 2 

(Molalla call log), 7 (showing call from ViSalus number 248-764-7521 on April 28).

Accordingly, there is undisputed evidence that ViSalus placed calls to Ms. 

Wakefield without her consent—even under the standard of consent that ViSalus now 

urges. If ViSalus had properly presented a consent defense, Ms. Wakefield would have 

been entitled to JMOL on it.

* * * 

In sum, ViSalus’ consent defense has nothing to do with Article III standing and 

thus ViSalus cannot raise it at this stage. Moreover, if ViSalus had properly presented 

this defense, it would have failed as a matter of law. 

II. This case continues to satisfy each of the requirements of Rule 23. 

ViSalus also argues that, under the FCC’s Order, ViSalus has an express consent 

defense that would defeat the requirements of Rule 23. This argument fails on three 

levels.

A. Because ViSalus did not raise a consent defense in this case or present 

one at trial, the Court cannot and need not consider consent in 

deciding class certification.

Class certification must be decided based on the claims and defenses actually 

raised in a case and presented at trial—not on the defenses that might have been 

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 15 of 27
10

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

presented in some other, hypothetical case that never came to be. And in this case—the 

one that was litigated for the last four years and tried to the jury in April—there was no 

consent defense or evidence of consent. To the contrary, ViSalus disavowed this 

defense—both expressly and by repeatedly refusing to produce the evidence it now says 

would support it. Accordingly, the consent defense ViSalus says it now has could not 

possibly factor into the Court’s decision on ViSalus’ motion to decertify. 

We first show that class certification must be based on claims and defenses 

actually raised and tried. We then show that ViSalus never raised a consent defense in 

this case and instead expressly disclaimed this defense on multiple occasions. 

1. The Court must decide class certification based on the claims, 

defenses, and evidence actually raised in this case and presented 

at trial. 

As ViSalus acknowledges, a post-trial motion to decertify must be decided based 

on the claims, defenses, and evidence actually at issue in this case and presented at trial. 

Bah. Surgery Ctr., LLC v. Kimberly-Clark Corp., No. 14-cv-8390 DMG (PLAx), 2018 

U.S. Dist. LEXIS 139931, at *75 (C.D. Cal. Mar. 30, 2018) (“Defendants have not 

satisfied their heavy burden to show why the Court should take the drastic step of 

decertification based on the evidence presented at trial.”); see dkt. 306, 5-6 (ViSalus 

motion to decertify) (collecting the following cases); Forehand v. Fla. State Hosp., 89 

F.3d 1562, 1566 (11th Cir. 1996) (affirming finding that “based on the evidence 

presented at trial, [the district court’s] previous class definition failed to comply 

with Rule 23 of the Federal Rules of Civil Procedure.”); Mazzei v. Money Store, 829 F.3d 

260, 268 (2d Cir. 2016) (“Decertification was based on the district court's determination 

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 16 of 27
11

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

that Mazzei had failed to prove through class-wide evidence at trial [an element of the 

claim]”); Key v. Gillette Co., 782 F.2d 5, 7 (1st Cir. 1986) (holding that a plaintiff’s 

“general lackluster performance during trial all reflected appellant's inability to ‘fairly 

and adequately protect the interests of her class.’”); Yeoman v. Ikea U.S.A. W., Inc., No. 

11-cv-00701-BAS(BGS), 2014 U.S. Dist. LEXIS 168968, at *15 (S.D. Cal. Dec. 4, 2014)

(“Plaintiff's evidence at trial has revealed that there is not a common answer to the 

essential, threshold question of whether requests for ZIP codes were made to each 

customer”); Taylor v. Hous. Auth. of New Haven, 267 F.R.D. 36, 62 (D. Conn. 2010),

aff’d sub nom. Taylor ex rel. Wazyluk v. Hous. Auth. of City of New Haven, 645 F.3d 152 

(2d Cir. 2011) (“The evidence at trial does not support the continued viability of a 

certified class”)). 

Moreover, because what matters for certification is what was actually raised and 

presented at trial, in deciding whether a case satisfied the requirements of Rule 23, courts 

do not consider affirmative defenses that were waived earlier in the case when deciding 

certification. True Health Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923, 931 (9th 

Cir. 2018) (in assessing consent under the TCPA, “we assess predominance by analyzing 

the consent defenses [the defendant] has actually advanced and for which it has presented 

evidence”); Moore v. Ulta Salon, Cosmetics & Fragrance Inc., 311 F.R.D. 590, 618 

(C.D. Cal. 2015) (noting that waiver of affirmative defense would obviate need to

consider it at class certification); Mazzei v. Money Store, 288 F.R.D. 45, 64 (S.D.N.Y. 

2012) (refusing to consider waived defense at class certification).

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 17 of 27
12

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

The reason for this is that Rule 23 is designed to ensure that it was proper for the 

case actually presented and tried to proceed as a class action. See Torres v. SGE Mgmt., 

LLC, 838 F.3d 629, 644 (5th Cir. 2016) (en banc) (noting that the court’s inquiry at class 

certification “looks to how the trial will proceed”). Rule 23 does not ask courts to 

speculate about whether it would have been proper for some different, hypothetical case

involving different defenses and different evidence to proceed as a class action. Such 

speculation would be pointless. 

2. There is no consent defense in this case because ViSalus never 

raised a consent defense (and instead repeatedly disclaimed this 

defense.)

In this case—the case that was actually litigated for the last four years and tried to 

the jury in April—no consent defense was ever raised, and no evidence of consent was 

ever provided (much less presented at trial). 

ViSalus never raised a consent defense in its answer. Dkt. 41 (Amended Answer). 

Nor did ViSalus provide information related to such a defense in discovery. In fact, 

ViSalus objected to any classwide discovery that would touch on whether it had obtained 

consent, and ViSalus refused to produce consent records. See, e.g., ex. 1 (ViSalus 

response to interrogatories) (refusing to answer interrogatory on this topic), 6-7; ex. 2 

(ViSalus response to requests for production), 8-9 (refusing to produce documents on this 

topic). And although ViSalus filed a motion to amend its answer to add a prior express 

consent defense about three years into the case, it later withdrew the motion and 

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 18 of 27
13

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

expressly represented that it would not raise this defense at trial. 3 Dkt. 145 (Notice of 

Withdrawal of Motion for Leave to Amend Answer) at 2. At every possible turn, 

ViSalus chose to forego the right to assert consent as a defense to Ms. Wakefield’s and 

the class’ claims.

In addition, ViSalus did not present any evidence of consent at trial. Nor did 

ViSalus propose jury instructions relating to its consent defense, seek to make a proffer 

of evidence of consent, or otherwise create a record that might allow this Court (or the 

Ninth Circuit, in the event of an appeal) to take evidence of consent into account when 

determining class certification on the existing record. 4

 (In fact, ViSalus represented to 

the Court during litigation over motions in limine that it would not present such evidence, 

and the Court based its decisions in part on those representations. Dkt. 269, at 5-6.)

Accordingly, on the current pretrial and trial record, there is no consent defense—

and no evidence of consent—that the Court could (much less would need to) consider 

when deciding ViSalus’ motion to decertify. As a result, none of the arguments or 

 3 As Plaintiff explained in her opposition to ViSalus’ Motion to Amend, Plaintiff 

would have been severely prejudiced if ViSalus had been allowed to raise consent as a 

defense at this late stage. Dkt. 138 at 13-17. For example, Plaintiff would have sought 

additional discovery on the issue of consent, including by moving to compel ViSalus to 

produce all the copies of screenshots purportedly evidencing consent, which ViSalus 

withheld during discovery on grounds of burden. See Dkt 139-1 (September 1, 2017 

Excerpts of Defendant’s Third Supplemental Responses and Objections to Document 

Requests). Further, Plaintiff lost the opportunity to dispense the issue of consent on a 

motion for summary judgment, which she would have filed for the reasons more fully 

explained in her opposition papers. Dkt. 138 at 15. 

4 ViSalus was of course aware of its pending request for a retroactive waiver, and 

mentioned it many times in its pretrial submissions and pretrial hearings. Accordingly, 

ViSalus was aware of the potential need to make such a record, and its strategic decision 

not to do so is not a reason to give it a redo.

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 19 of 27
14

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

evidence ViSalus raises in its supplemental briefing could possibly have any bearing on 

ViSalus’ motion to decertify. See True Health Chiropractic, Inc. v. McKesson Corp., 

896 F.3d 923, 931 (9th Cir. 2018) (in assessing consent under the TCPA, “we assess 

predominance by analyzing the consent defenses [the Defendant] has actually advanced 

and for which it has presented evidence.”). For example, because there is no consent 

defense at issue, there will be no need to decide “which class members qualify for the 

waiver,” Supplemental Brief at 7, or whether whatever consent class members may have 

provided qualifies as “prior express consent” following the waiver, id. at 8-15). 5

 

* * *

In sum, because the issue of consent is not part of the current pretrial or trial 

record, the Court should not (and cannot) consider it in deciding ViSalus’ motion to 

decertify the class. 

If ViSalus wants the Court to consider such evidence in deciding certification, it 

would need to (1) move for and obtain a new trial following entry of judgment, see Fed. 

R. Civ. P. 59; (2) move for and obtain permission to amend its answer to raise a consent 

 5 In addition, Federal Rule of Civil Procedure 37(c)(1) precludes ViSalus from 

relying on its new evidence of consent in this brief. ViSalus’ latest decertification 

argument relies on documents that it did not produce in discovery. Under Rule 37, if a 

party fails to provide information as required by Rule 26(a) or (e), the party is not 

allowed to use that information to supply evidence on a motion unless the failure was 

substantially justified or harmless. ViSalus’ failure to produce the documents it now 

proffers in its supplemental briefing is neither harmless nor justified. Even though Ms. 

Wakefield sought to obtain discovery of ViSalus’ purported consent records, ViSalus 

refused to turn over any such documents. Moreover, one declarant—Aldo Moreno—was 

not included on ViSalus’ initial disclosures, and Ms. Wakefield never had the opportunity 

to depose him with respect to class certification or the merits. The Court should not 

countenance ViSalus’ extreme sandbagging.

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 20 of 27
15

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

defense at that new trial; (3) move for and obtain permission to reopen discovery so that 

the parties can take discovery on this issue in advance of that new trial; and then (4) 

actually present such evidence, to the extent it exists, at the new trial. (Moreover, should 

ViSalus attempt to do this at the appropriate time, Ms. Wakefield will demonstrate that 

the Court should deny such relief at every step and affirm the judgment). 6

B. If ViSalus had raised and presented a consent defense, this defense

would not be a reason to decertify the class (and would instead confirm 

that this class should proceed as a class action). 

Moreover, if it had been presented, ViSalus’ consent defense would not provide a 

reason to decertify the class.

ViSalus’ primary argument is that “individual issues [would] predominate on 

consent.” ViSalus Supplemental Brief, 8. The purportedly individual issues ViSalus 

says would have to be decided all boil down to whether a particular class member 

qualifies for the waiver and whether the form that class member used to sign up qualifies 

as consent under the standard that ViSalus contends applies under the waiver. Id. at 7-8. 

These are common (not individual) questions with common answers subject to common 

proof. Indeed, at most, the jury would have to determine whether a handful of different 

 6 Notably, that the FCC did not grant ViSalus’ waiver until after trial is entirely 

ViSalus’ own doing. ViSalus waited over two years after the declaratory ruling it 

contends put it on notice of the need for a waiver—and just under two years after this 

case was filed—to even request a waiver from the FCC in the first instance. Compare 

Dkt. 171-1 (ViSalus Petition for Waiver) (submitted September 13, 2017) with In the 

Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 

F.C.C. Rcd. 7961, 8014 (2015) (issued June 18, 2015) (clarifying that “telemarketers 

should not rely on a consumer's written consent obtained before the current rule took 

effect if that consent does not satisfy the current rule”); Dkt. 1 (Complaint) (filed October 

1, 2015). 

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 21 of 27
16

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

forms (pages 10-11) constituted prior express consent under the applicable standard. 

Each form would have been used by thousands (if not tens or hundreds of thousands) of 

class members. And the jury’s determination as to whether the form used qualifies as 

consent would apply to each class member who used the form. 

Accordingly, far from being an individual issue, whether or not the handful of 

forms ViSlaus claims it used—each applying to thousands of class members—constitutes 

prior express consent under the pre-2013 consent standard is a common question subject 

to common proof. It further confirms that common questions predominate over 

individual ones. True Health Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923, 932 

(9th Cir. 2018) (concluding that consent is a common question with a common answer 

where [c]onsent, or lack thereof, is ascertainable by simply examining the product 

registrations and the EULAs.”); ”); Toney v. Quality Res., Inc., 323 F.R.D. 567, 587 

(N.D. Ill. 2018) (“[I]f the defendant obtained the class members’ consent for calls in a 

uniform manner, consent can be resolved on a class-wide basis.”).

ViSalus complains that its purported records of consent would have to be 

aggregated, summarized, and cross-checked before they could be used to provide classwide proof of consent (or lack of consent). But this does not change the fact that they are 

common records (the same forms) that can be used to answer common questions (consent 

for thousands of class members). And records are routinely summarized and analyzed 

before they are used to provide proof in class actions. 

ViSalus also contends that because it has no record that promoters who signed up 

online before October 2013 gave any type of consent, each class member will need to be 

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 22 of 27
17

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

“individually examined” on this issue. ViSalus Supplemental Brief, 9. But this is not an 

argument showing a need to decertify, but rather an admission that the defense would 

fail. To prevail on its written consent defense, ViSalus must show that it had written 

records of consent at the time it placed the call. True Health Chiropractic, Inc. v. 

McKesson Corp., 896 F.3d 923, 931 (9th Cir. 2018) (in assessing consent under the 

TCPA, “we assess predominance by analyzing the consent defenses [the Defendant] has 

actually advanced and for which it has presented evidence.”); Meyer v. Portfolio 

Recovery Assocs., LLC, 707 F.3d 1036, 1042 (9th Cir. 2012) (holding that in the absence 

of any records of consent by defendant, consent is a common issue with a common 

answer); see In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 

1991, 30 F.C.C Rcd 7961, 7990 (F.C.C. July 10, 2015) (“we emphasize that regardless of 

the means by which a caller obtains consent, under longstanding Commission precedent, 

if any question arises as to whether prior express consent was provided by a call 

recipient, the burden is on the caller to prove that it obtained the necessary prior express 

consent”). Accordingly, because by ViSalus’ admission it lacks records that it had prior 

written consent at the time it made the calls, its consent defense fails. There is no need to 

individually examine anyone on this topic.

Finally, the cases ViSalus cites are inapplicable. In Brodsky, there was a unique, 

“thorny” consent issue that actually required individual testimony—examining whether, 

based on their individual circumstances, certain fax recipients were employees or 

independent contractors and therefore subject to a contract allegedly granting consent to 

receive faxes. Brodsky v. Humanadental Ins. Co., 269 F. Supp. 3d 841, 846 (N.D. Ill. 

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 23 of 27
18

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

2017). There is no such issue here. In NEI Contracting, the alleged consent was 

customers’ “actual knowledge” that they were bring recorded—an issue that is specific to 

each individual customer and would therefore require individual testimony from each 

customer, not mere aggregation of records. Nei Contracting & Eng'g v. Hanson 

Aggregates, Inc., No. 12-cv-01685-BAS(JLB), 2016 U.S. Dist. LEXIS 60624, at *5 (S.D. 

Cal. May 5, 2016). In Simon, the defendant alleged that calls were made to members 

who “orally provided express permission.” Simon v. Healthways, Inc., No. 14-cv-08022-

BRO (JCx), 2015 U.S. Dist. LEXIS 176179, at *16 (C.D. Cal. Dec. 17, 2015). In 

contrast to written records, such oral permission would require “hundreds of mini-trials” 

to prove. Id. at 22. And in Sandusky, the defendant produced over “450,000 pages of 

various forms” (i.e., many different types of forms) purportedly showing consent for 

“several thousand” class members. Sandusky Wellness Ctr., Ltd. Liab. Co. v. ASD 

Specialty Healthcare, Inc., 863 F.3d 460, 468-69 (6th Cir. 2017); Sandusky Wellness Ctr., 

Ltd. Liab. Co. v. ASD Specialty Healthcare, Inc., No. 3:13-cv-2085, 2016 U.S. Dist. 

LEXIS 1864, at *12 (N.D. Ohio Jan. 7, 2016) (“customers consented through a variety of 

different forms, completed in unique ways at different times”). There, trial would have 

required analyzing each of the many form types to “discern[] which provide the requisite 

consent.” Sandusky, 863 F.3d at 469. Here, ViSalus has produced only a few different 

types of forms, for only about 30 purported class members. This case is not even close to 

Sandusky. Instead, it is like True Health Chiropractic, Inc. v. McKesson Corp., 896 F.3d 

923, 932 (9th Cir. 2018), where the Ninth Circuit held that a few different types of 

alleged consent forms are common (not individual) evidence. Id.; see Torres v. Mercer 

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 24 of 27
19

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

Canyons, Inc., 835 F.3d 1125, 1137 n.5 (9th Cir. 2016) (evidentiary showing that 2 

members of a 600 person class lacked claim did not demonstrate that the class was 

empirically overbroad).

C. The FCC’s waiver is irrelevant to ViSalus’ consent defense, because it 

does not apply to any of the claims asserted in this case. 

In addition, the FCC’s waiver has no relevance at all because it does not apply to 

this case. 

First, the FCC, an administrative agency, does not have the authority to take away 

a statutory remedy provided by Congress. “[T]he FCC cannot use an administrative 

waiver to eliminate statutory liability in a private cause of action; at most, the FCC can 

choose not to exercise its own enforcement power. It would be a fundamental violation 

of the separation of powers for the administrative agency to ‘waive’ retroactively the 

statutory or rule requirements for a particular party in a case or controversy presently 

proceeding in an Article III court.” Physicians Healthsource, Inc. v. Stryker Sales Corp., 

65 F. Supp. 3d 482, 498 (W.D. Mich. 2015). 

Second, by its own terms, the FCC’s order on ViSalus’ petition grants a waiver of 

the rules implementing the TCPA—and not of the requirements of the TCPA itself. See

Dkt. 321-1 (FCC Order re ViSalus Petition for waiver), 5 (“we find good cause exists to 

grant individual retroactive waivers of section 64.1200(a)(2) of the Commission’s rules”). 

This makes sense because the FCC does not even arguably have the authority to waive 

the requirements of a statute duly enacted by Congress. This case, however, does not 

involve violations of the FCC’s regulations implementing the TCPA. It involves 

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 25 of 27
20

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

violations of section 227(b) itself—the statute, not the FCC’s rules implementing the 

statute. See 47 U.S.C. 227(b)(1)(A). Moreover, the statute itself—not the FCC’s rules 

implementing it—is what provides for the private right of action that the class asserts in 

this case. See 47 U.S.C. 227(b)(3). Accordingly, the FCC’s order on waiver does not 

(and could not possibly) waive the requirements of prior express consent at issue in this 

case. Those requirements come directly from the statute, not from any rules that the FCC 

could arguably waive. Cf. PDR Network LLC v. Carlton & Harris Chiropractic, Inc., 

139 S. Ct. 2051, 2055 (2019) (FCC orders interpreting statutory provisions not entitled to 

binding deference in private litigation).

Third, at the time the FCC issued its waiver, the statutory rights at issue had 

already been adjudicated and vested. Taking away such a vested right would violate the 

Fifth Amendment. 

III. Conclusion. 

In sum, the FCC’s order on ViSalus’ retroactive waiver does not deprive Ms. 

Wakefield of standing or affect the analysis under Rule 23. Accordingly, the Court 

should deny ViSalus’ motion to decertify and should enter judgment based on the jury’s 

verdict. 

Date: July 15, 2019 Respectfully submitted,

By: /s/ Simon Franzini

DOVEL & LUNER, LLP

Simon Franzini, Cal. Bar #287631*

simon@dovel.com

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 26 of 27
21

Plaintiff’s supplemental brief in opposition to ViSalus’ motion to decertify

Gregory S. Dovel, Cal. Bar #135387*

greg@dovel.com

Jonas Jacobson, Cal. Bar #269912*

jonas@dovel.com

201 Santa Monica Blvd., Suite 600

Santa Monica, California 90401

Tel: (310) 656-7066

Fax: (310) 656-7069

EDELSON PC

Rafey S. Balabanian, ILB #6285687*

rbalabanian@edelson.com

Eve-Lynn J. Rapp, ILB #6300632*

erapp@edelson.com

Lily E. Hough, SBN #315277*

lhough@edelson.com

123 Townsend Street, Suite 100

San Francisco, California 94107

Tel: (415) 212-9300

Fax: (415) 373-9435

FORUM LAW GROUP

Scott F. Kocher, OSB #015088

Stephen J. Voorhees, OSB #150595

811 S.W. Naito Parkway, Suite 420

Portland, Oregon 97204

Tel/Fax: (503) 445-2120

* admitted pro hac vice

Attorneys for Plaintiff Wakefield and the 

Certified Class

Case 3:15-cv-01857-SI Document 333 Filed 07/15/19 Page 27 of 27