The notice also uses the word “unsolicited.” (Doc. 93-1, at 29, 30.) The TCPA
specifically defines “unsolicited advertisement,” but that phrase is only used in reference to faxed
advertisements. 47 U.S.C. § 227(a)(5), (b)(1)(C)(G). Therefore, the use of the term
“unsolicited” could confuse notice recipients, and fails to meet the requirement that notice be
clear. “Unsolicited” should be removed from the notice language.

Cc Delete “on behalf of ViSalus.”

The notice language refers at times to calls being made “by or on behalf of ViSalus.”
(Doc. 93-1, at 22, 27, 29.) However, as ViSalus has repeatedly made clear, the calls at issue
were made by ViSalus — not some third party. ViSalus did not hire a call-center. All of the
telephone call spreadsheets ViSalus produced and that Plaintiff refers to in the Motion as being
1.937 million calls are calls by ViSalus. There has not been any evidence produced regarding
any third party making calls on ViSalus’s behalf. (See Doc. 74, at 20-21.) Accordingly, the
phrase “on behalf of ViSalus” should be removed because it may cause confusion to notice
recipients and violate Rule 23(c)(2)(B)’s mandate that notice be clear.

dD Two points in the Basic Information on the proposed website.

Section 4 of the “Basic Information” for the proposed website states that the Court
specifically found that “Thousands of individuals allegedly received the automated calls and are
Class Members.” (Doc. 93-1, at 28.) But the Court’s Order on classification does not make this
finding, and so it should be removed. The Court only specifically stated that the proposed
Robocall Class met the Rule 23 requirements. (Doc. 81, at 19.)

Section 10 of the “Basic Information” informs recipients that they may be part of the

class if they received an automated telephone call and have certain documentation of the call.

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Court approve notice to the class members by “the best notice practicable under the
circumstances, including individual notice to all members who can be identified through
reasonable effort.” The Federal Judicial Center directs that a “high percentage (e.g., between 70-
95% [of class members]) can often reasonably be reached by a notice campaign,” and that 87%
is the median for approved plans. Judges’ Class Action Notice and Claims Process Checklist
and Plain Language Guide (2011) (“Judges’ Checklist”), at 1,3.

It is well-established that first-class mail directed to the last known addresses of the class
members is the best notice practicable to ensure that proper notice is received by the class
members. See, e.g., Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 175 (1974) (“In the present
case, the names and addresses of 2,250,000 class members are easily ascertainable, and there is
nothing to show that individual notice cannot be mailed to each. For these class members,
individual notice is clearly the ‘best notice practicable’ within the meaning of Rule 23(c)(2) and
our prior decisions.”); Rannis v. Recchia, 380 Fed. Appx. 646, 650 (9th Cir. 2010) (finding that
class members who received written notice, even though some were undelivered, received the
“best notice that is practicable under the circumstances”); Jn re Vivendi Universal, S.A. Sec.
Litig., No. 02 Civ. 5571, 2009 WL 855799, at *8 (S.D.N.Y. Mar. 31, 2009) (“Individual notice,
generally by first-class mail, is mandated for all class members who can be identified with
reasonable efforts. However, where the identification of class members is not possible, courts
may approve other methods, including publication, as ‘the best notice practicable under the
circumstances.’”); Reab vy. Elec. Arts, Inc., 214 F.R.D. 623, 630-31 (D. Colo. 2002)
(“Historically, first class mailing has been utilized because it provides a controlled method by

which individual notification can be provided through a reliable process which ensures that

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pocketbooks of particular plaintiffs.”).

Courts only shift the cost of notice in unusual circumstances, such as where the court has
entered summary judgment against the defendant before notice is sent. See, e.g., Hunt v.
Imperial Merchant Servs., Inc., 560 F.3d 1137, 1144 (9th Cir. 2009), cert, denied, 558 U.S. 826
(2009) (“District courts may order a class action defendant to pay the cost of class notification
after they determine that the defendant is liable on the merits.”). However, the Supreme Court
has admonished “that courts must not stray too far from the principle . . . that the representative
plaintiff should bear all costs relating to the sending of notice because it is he who seeks to
maintain the suit as a class action.” Oppenheimer Fund, 437 U.S. at 359. Therefore, the notice
plan should require Plaintiff pay for providing class notice.

Ill. BANNER ADS ARE NOT APPROPRIATE FOR NOTICE,

Plaintiff estimates that she has mail and email addresses for about 1.713 million of the
estimated total 1.937 million telephone numbers — or 88.44% of what she estimates are the total
potential class members. (Doc. 93-1, §7.)® She can obtain additional postal mailing addresses
through reverse-lookups. (Jd. §J 8, 10.) Also, the percentage of addresses of the class members
may be even higher considering the error in using the 1.937 million figure. See Sec. I, infra.
Even though she has and can use reverse directory lookups to obtain more than enough
addresses for individual notice — more than that required by the Judges’ Checklist and more than
the 87% median in approved class notice plans — Plaintiff still proposes Google banner-ads to
reach those who do not receive individual notice. True, there is the potential that someone who

did not receive individual notice and would be in the Robocall Class could see the Google banner

8 Plaintiff states that she has approximately: 220,000 telephone numbers with email and postal addresses only;
820,000 numbers with email only; and 673,000 with postal addresses only, for a total of 1.713 million.

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Ltd., 52 F. Supp. 3d 443, 463 (E.D.N.Y. 2014) (citing Karvarly, infra, and Reab, and finding that
“the universe of collective action members is limited and first-class mail is an adequate means to
disseminate the Notice” and therefore email notice was denied); Cantu v. Milberger
Landscaping, Inc., No. SA-13-CA-731, 2013 WL 12101104, at *4 (W.D. Tex. Nov. 22, 2013)
(citing Reab and ordering the notices be sent via first-class mail rather than email); Espenscheid
y. DirecStat USA, LLC, No. 09-cv-625-bbe, 2010 WL 23330309, at *14 (W.D. Wis. June 7,
2010) (rejecting the plaintiff's request to serve notice via email because “of the potential for
recipients to modify and re-distribute email messages”); Hintergerger v. Catholic Health
Sys., 08-CV-380S, 2009 WL 3464134, at *13 (W.D.N.Y. Oct. 21, 2009) (rejecting the plaintiff's
request to provide notice by email and ordering notice by first-class mail); Karvaly v. eBay, Inc.,
245 F.R.D. 71, 91 (E.D.N.Y. 2007) (finding that although email notice may be more convenient
and cheaper, it was not an adequate substitute for mailing notice to class members).

Plaintiff has 46.10% of the potential class members’ postal addresses. (Doc. 93-1, 4 7.)4
Plaintiff's consultant proposes using a reverse directory search to find postal addresses, but does
not state a success rate for this process. (/d. 8.) Rather than sending postal mail to all of these
potential class members for whom Plaintiff has addresses, she instead proposes using the mailing
addresses to find email addresses for potential class members. (/d. 4 10.) Plaintiff's consultant
estimates that it would only be able to obtain email addresses for 63% of the mailing addresses it
processes. (/d.) Therefore, Plaintiff would likely have more postal mailing addresses through

this process than email addresses. And yet, without explaining her reasoning other than it would

4 The Motion misstates the percentage of mailing addresses. The Declaration of Carla Peak, Plaintiff's consultant,
states that of the 1.937 million telephone numbers, she has email and postal addresses for 220,000 and only postal
addresses for another 673,000 (totaling 893,000). (Doc. 93-1, | 7.) 893,000 is 46.10% of 1.937 million. Therefore,
Plaintiff's statement that she has mailing addresses for approximately 34.7% of the pool is inaccurate. (Doc. 93, at 5
n.4.)

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proper notice is received by the potential class members.”). Likewise, the Judges’ Checklist
states that mailing is preferred, even where it may be “difficult,” but is not unreasonably
burdensome because the addresses are within the defendant’s records.

Courts have rejected attempts to substitute email for postal notice because the latter
preserves the integrity of the process and provides the best chance that the notice will reach
those, and only those, who should receive notice. See 1 McLaughlin on Class Actions § 5.81
(4th ed.).

Historically, first class mailing has been utilized because it
provides a controlled method by which individual notification can
be provided through a reliable process which ensures that proper
notice is received by the potential class members. ... Such a
mailing process ensures the integrity of a judicially controlled
communication directed to the intended audience. In contrast,
electronic communication inherently has the potential to be copied
and forwarded to other people via the internet with commentary
that could distort the notice approved by the Court. Electronic
mail heightens the risk that the communication will be reproduced
to large numbers of people who could compromise the integrity of
the notice process. In addition, email messages could be
forwarded to nonclass members and posted to internet sites with
great ease. First class mail ensures, at the outset, that the
appropriately targeted audience receives the intended notification
and maximizes the integrity of the notice process.

Reab, 214 F.R.D. at 630-31. The Judges’ Checklist is in accord: “If available, parties should use
postal mailing addresses, which are generally more effective than e-mail in reaching class
members: mail-forwarding services reach movers, and the influx of ‘SPAM’ e-mail messages
can cause valid e-mails to go unread.” Jd. at 3. See also Huyer v. Wells Fargo & Co., No. 4:08-
CV-00507, 2014 WL 12696857, at *4 (S.D. Iowa Oct. 17, 2014) (finding that other than being
cheaper, email notice was not superior or more practicable, and therefore first-class mail remains

the “best notice practicable under the circumstances” under Rule 23(c)(2)); Sharma v. Burberry

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notice by email alone, and instead require Plaintiff to use first-class mail to notify potential class
members.®

B. Requiring Notice be Mailed Does Not Alter the Cost Burden.

Plaintiff's notice plan does not mention who will bear the cost of notice, however,
Plaintiffs counsel informed defense counsel that should ViSalus oppose the notice plan, Plaintiff
reserves the right to seek to have ViSalus share the cost of notice.’ Providing notice is a class
plaintiff's burden, and requiring mailing notice rather than emailing does not shift that burden.
As the U.S. Supreme Court has said, “ordinarily there is no warrant for shifting the cost of” class
notice to the defendant. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 356 (1978); see also,
Eisen, 417 U.S. at 176, 178-79 (“Where, as here, the relationship between the parties is truly
adversary, the plaintiff must pay for the cost of notice as part of the ordinary burden of financing
his own suit,” even though there were 2.25 million class members). Plaintiff has not argued that
she could not afford the cost of notice. But even if she did, “[t]he mere fact that a plaintiff
cannot bear the cost of notice does not indicate that the defendant must pick up this bill. The
desire to implement the class action device effectively must always be balanced by the fear that
excessive concern for the financial interests of the plaintiff may result in the imposition of
unwarranted expenses upon the defendant.” Herbst v. Int’l Tel. & Tel. Corp., 65 F.R.D. 13, 20
n.17 (D. Conn. 1973), order aff'd, 495 F.2d 1308 (2d Cir. 1974); see also Eisen, 417 U.S. at 176

(“There is nothing in Rule 23 to suggest that the notice requirements can be tailored to fit the

© Pursuant to the Judges’ Checklist, such a postal mailing should have markings to distinguish it from junk mail,
such as a reference to the court’s name, and call-outs on the front and back to encourage the recipient to promptly
review it. Judges’ Checklist, at 10.

7 Should Plaintiff's reply brief request cost of notice be shared, ViSalus expects to request to file a surreply.

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ATTORNEYS AT LAW


Joshua M. Sasaki, P.C., OSB No. 964182
josh.sasaki@millernash.com

Nicholas H. Pyle, OSB No. 165175
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

2N. Central Ave.

One Renaissance Square

Phoenix, AZ 85004

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.

Defendant ViSalus, Inc. (“ViSalus”) h

of Class Notice Plan (Doc. 93, the Motion).

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CV No. 3:15-cv-01857-BR
DEFENDANT VISALUS, INC.’S RESPONSE

TO PLAINTIFF’S MOTION FOR
APPROVAL OF CLASS NOTICE PLAN

ereby responds to Plaintiff's Motion for Approval

QB\49115077.1_ APPROVAL OF CLASS NOTICE PLAN

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& BRADY LLP
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exactly who may qualify as a class,” the court approved a notice plan involving Internet banner
ads and articles in the press). The Judges’ Checklist agrees, stating that if the proposed mailings
will not reach a sufficiently high percentage of the class, then publication may be used. Judges’
Checklist, at 3. Because Plaintiff has an address or can derive an address for nearly all of the
Robocall Class, banner ads are not warranted.

Plaintiff's reliance on Lilly v. Jamba Juice Co., 308 F.R.D. 231, 239 (N.D. Cal. 2014) is
misplaced. (Doc. 93, at 6.) There, the court approved a print and media notice campaign to
reach individuals for whom the defendant did not have contact information. There is no such
concern here because as discussed above, Plaintiff has, through ViSalus’s records and reverse
look-ups, mail and email addresses for nearly all of those whose phone numbers appear on
ViSalus’s calling spreadsheets. Plaintiffs reliance on Flynn v. Sony Electronics, Inc., No. 09-
CV-2109-BAS, 2015 WL 128039 (S.D. Cal. Jan. 7, 2015) is likewise misplaced. There, the
plaintiff's firm estimated that it could only reach 38.86% of the class members through
individualized notice. Jd at *1. Therefore, the plaintiff proposed notice by publication in
People magazine and the Los Angeles Daily News to reach another 43.04% of the class members.
Id. Again, here, Plaintiff has no need to employ notice by publication because the best
practicable notice can be accomplished through individual notice.

Accordingly, ViSalus respectfully requests that the Court deny Plaintiffs request to
employ Internet banner advertisements.

IV. THE LANGUAGE OF THE PROPOSED NOTICE REQUIRES REVISIONS.

The language for class notice must be clear and concise in how it explains, inter alia, the

nature of the action, the certified class, and the class claims and defenses. See Fed. R. Civ. P. 23;

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ad. But more harm is done by the banner ad than good because such ads would indiscriminately
reach a very broad audience. Plaintiff proposes purchasing 43 million internet impressions,
which would “target” adults. (Doc. 93-1, 4.11.) Where we have a finite list of individuals of
about 1.9 million potential class members, there is no reason to cast a broad net to potentially 43
million non-class members. The banner ads could cause confusion and increase the cost of
administration due to non-class members filing claims, and would unnecessarily tarnish
ViSalus’s reputation. See Yeoman, 2013 WL 5944245, at *4 (rejecting the plaintiffs’ request that
the defendants “post[] [class action] notice at each point-of-sale location” because doing so
“would encourage inquiries by non-class members, which could interfere with [the defendants’]
reputation and business”); Mark v Gawker Media LLC, No, 13-cv-4347, 2015 WL 2330079, at
*1 (S.D.N.Y. Mar. 5 , 2015) (rejecting an overinclusive notice scheme because its primary effect
would be to “advertise the alleged violations by Defendants”); Zylka v Gerber Products Co., 182
F.R.D, 573, 578-59 (N.D. Ill. 1998) (rejecting plaintiff's plan to publish notice of a class action
suit involving Illinois class members in nationwide newspapers; such overbroad notice appeared
to be designed to “club [the defendant] into submission,” not to actually notify potential class
members of the plaintiffs claim).

Courts limit banner ads for notice where the plaintiff did not have the addresses for
individual notice. See, e.g., Brown v. 22nd Dist. Agricultural Ass'n, No. 15-cv-2578-DHB, 2017
WL 2172239, at *4 (S.D. Cal. May 17, 2017) (“Notice by publication is used when the identity
and location of class members cannot be determined through reasonable efforts.”); In re Google
Referrer Header Privacy Litig., No. 5:10-cv-04809, 2014 WL 1266091, at *7 (N.D. Cal. Mar.

26, 2014) (Because the “size and nature of the class renders it nearly impossible to determine

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be less expensive, she asserts that email notice is the best practicable method of notice. Overall
cost is not a basis for shifting the cost of notice, as discussed below. And the fact that any
individual may only receive a small amount of compensation, should Plaintiff succeed, does not
mean that individual mailed notice is not required under Rule 23. Macarz v. Transworld Sys.,
Inc., 201 F.R.D. 54, 61 (D. Conn. 2001), on reconsideration (May 11, 2001) (rejecting the
argument that because individual recovery was so small, notice by mailing was unnecessary, and
citing Eisen, 417 U.S. at 176, stating that “individual notice to identifiable class members is not a
discretionary consideration to be waived in a particular case. It is, rather, an unambiguous
requirement of Rule 23”).

Plaintiff's citations are unavailing. She cites Browning v. Yahoo! Inc., 2006 WL
3826714 (N.D. Cal. Dec. 27, 2006), where the court approved email notice. However, in that
case, the court found that notice to the settlement class was “particularly suitable in this case”
because the class allegations arose from the class members’ visits to the defendant’s websites,
demonstrating their familiarity and comfort with email. /d. at *8. Plaintiff also cites Bruno v.
Quten Research Institute, LLC, 2012 WL 12886843, at *5 (C.D. Cal. July 16, 2012), but that
decision likewise approved individual notice by email because the class members purchased the
accused product online. This case is different from Browning and Bruno. The class allegations
do not arise from email or online purchases. Rather, they arise from ViSalus’s telephone calls to
the alleged class members. Therefore, email notice is not “particularly suitable” here.5

Accordingly, there is no reason for the Court to allow Plaintiff to use the less-effective

method of email notice. Therefore, ViSalus requests that the Court deny Plaintiffs plan for

5 Also, the Browning court approved notice by U.S. Mail to class members where the emailed notice bounced back
to the sender. /d. Plaintiff makes no such proposal to handle such inevitable bounce-back email notices.

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ar

IBYS AT LAW
229

av


Class. See Ybarra v. Dish Network, L.L.C., 807 F.3d 635, 641 (5th Cir. 2015) (“We hold that
making a call in which a prerecorded voice might, but does not, play is not a violation of the
TCPA [47 U.S.C. § 226(b)(1)(A)(iii)]. Instead, the prerecorded voice must ‘speak’ during the
call.”). There is no indication that Plaintiff subtracted these calls from the estimated 1.937
million. Thus, Plaintiff's proposed plan would send individual notice to called parties who
would not be in the Robocall Class. These two issues would cause confusion, increase the
expense of notice, and potentially increase the cost of administering claims. See Yeoman v. Ikea
U.S. West, Inc., No. 11cv701, 2013 WL 5944245, at *6 (S.D. Cal. Nov. 5, 2013) (refusing to
approve the plaintiffs’ request that the defendants send e-mail notice to an overbroad list of
customers, noting that there was “no link between individuals who may have provided their
email addresses” and the relevant class)”; In re Domestic Air Transp. Antitrust Litig., 141 F.R.D.
534, 546 (N.D. Ga. 1992) (noting that overbroad notice “would most likely confuse the
recipients and encourage claims by non-class members”)? Accordingly, the Court should
require Plaintiff to: (a) remove from the list of telephone numbers (if not already removed) all
non-marketing calls; and (b) remove from the list of telephone numbers all calls that did not
result in a person or an answering machine/voicemail answering the phone.

Il. NOTICE SHOULD BE MAILED TO POTENTIAL CLASS MEMBERS, AT
PLAINTIFF’S COST.

A, Mailing is the Best Notice Practicable.
As Plaintiff recognizes, Federal Rule of Civil Procedure 23(c)(2)(B) requires that the

2 The court approved notice by posting a poster at certain Ikea stores because there was no way to link the emails
with individual putative class members. 2013 WL 5944245, at **4-5.

3 The court approved instead notice by publication only because, unlike here, there was no reasonable way to
identify class members. 141 F.R.D. at 548.

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(Doc. 93-1, at 29.) That paragraph should warn recipients that the Court has not determined
whether any of the identified documentation is sufficient evidence for a class member to
demonstrate damages and assert a claim for compensation.

CONCLUSION

For all of the foregoing reasons, ViSalus requests that the Court only approve the class-
notice plan with the modifications discussed above and summarized below:

1. Eliminate from the list of potential class members to receive individual notice
telephone numbers where the call did not go through, or the phone rang and no person, voicemail
or answering machine responded, and any that are drawn from lists of non-marketing campaigns.

2. Require individual notice by U.S. Mail, First Class, paid for by Plaintiff.

3. Revise the language of the notices as discussed in Section IV, supra.

DATED this 10" day of November, 2017.
QUARLES & BRADY LLP

By /s/ Sarah R. Anchors

Sarah R. Anchors (Pro Hac Vice)
sarah.anchors@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.

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ATTORNEYS AT LAW
TELEPHONE: 602,229,520
1 RENAI

2N, CE


DATED this 10th day of November, 2017.

/s/ Sarah R. Anchors

Sarah R. Anchors (Pro Hac Vice)

Attorneys for Defendant ViSalus, Inc.

Page 2 - Certificate of Service
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mention who shall bear the cost of notice. Case law is clear that the cost is Plaintiff's burden,
and requiring mailing notice does not shift that burden.

Third, even though Plaintiff admits she has mailing address and/or email addresses for
more than 88% of the potential class members, she proposes Google banner ads. Those ads
would sweep broadly, reaching many people who would not be part of the class, thereby
potentially causing confusion and needlessly raising the cost of administration.

Fourth, ViSalus objects to certain language in the proposed notice, banner ad and website

because it mischaracterizes the law and claims.

I PLAINTIFF’S PLAN APPEARS TO SEND INDIVIDUAL NOTICE TO NON-
CLASS MEMBERS.

ViSalus produced spreadsheets of telephone numbers called for marketing and non-
marketing purposes that may have used a prerecorded message or artificial voice. Plaintiff
estimates that these records have 1.937 million telephone numbers. (Docs. 93, at 2 n.1, 93-1,
4/7.) Plaintiffs Motion does not set forth whether this 1.937 million number includes those non-
marketing calls, or from what spreadsheets she derived this 1.937 million number. There is no
basis for sending individual notice to people whose telephone numbers appear in the non-
marketing phone call records because they would not be members of the Robocall Class.

Also, many of the spreadsheets of telephone calls made for marketing purposes have a
“disposition” column, wherein it states the result of each call. Dispositions include the call did
not go through; or the call rang and there was no answer.' Obviously, if the call did not go
through or there was no answer or answering machine, then a prerecorded message or artificial

voice could not have been played and the called party would not be a member of the Robocall

' This is a different issue from that addressed in the Motion (Doc. 93, at 4 n.3) of there being spreadsheets of
telephone calls that do not have disposition codes, and for which ViSalus cannot definitively state that each of the

telephone numbers on that list were called.

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ATTORNEYS AT LAW,



MEMORANDUM OF LAW

INTRODUCTION

ViSalus has four objections to the notice plan. First, the Motion is problematic based on
how it approximates that notice should be made to subscribers for approximately 1.937 million
telephone numbers. (Doc. 93, at 2; Doc. 93-1, 7.) Plaintiff has not explained how she reached
the 1.937 million number (and did not respond to undersigned counsel’s request for
clarification), Plaintiff states that these telephone numbers are derived from ViSalus’s records of
telephone calls that it made, produced in response to discovery requests. Such records include
both marketing and non-marketing telephone calls (such as calls to purchasers that the credit card
number provided did not work). Plaintiff's Motion does not state whether she eliminated non-
marketing telephone calls in compiling the list of approximately 1.937 million telephone
numbers. Plaintiff also does not address eliminating from the list of telephone numbers instances
where the call ended without a person or an answering machine or voicemail picking up the line,
or calls that did not even go through. The Robocall Class is limited to those who received a
marketing message with an artificial voice or prerecorded message. (Doc. 81.) Calls that were
never picked up could not have resulted in the called-party receiving a prerecorded message, and
therefore these call recipients would not be in the Robocall Class. As a result, estimates about
the available mailing addresses and email addresses for the Robocall Class cannot be accurately
calculated at this point.

Second, ViSalus opposes the plan to only notify potential class members by email.
Plaintiff has the mailing addresses for nearly half of the estimated potential class members (using
the 1.937 million figure), and can obtain additional mailing addresses through reverse directory
lookups from the telephone numbers. (Doc. 93-1, 8, 10.) Courts have long considered
mailing the best way to notify potential class members. Therefore, ViSalus requests that the

Court order Plaintiff to mail notice to class members. Plaintiff's Class Notice Plan does not

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see also Judges’ Checklist, at 5. ViSalus requests the following changes to the notice language
for the reasons discussed below.

A. Use “prerecorded” rather than “automated” or “robocalling.”

The proposed email, banner advertisement and website all use the term “automated
telephone call” (Doc. 93-1, at 22, 25, 27-30); and in one instance “robocalling” (id. at 27) and
another instance “robotic voice” (id. at 22). While part of the TCPA addresses the use of an
automatic telephone dialing system to make telephone calls to cellular telephones (47 U.S.C. §
227(b)(1)(A)), this lawsuit — and importantly, the definition of the Robocall Class — does not
involve that prohibition in the TCPA. Rather, the litigation and the certified class is limited to
marketing telephone calls that delivered a prerecorded message or artificial voice. (Doc. 81, at
6.) Therefore, the use of “automated telephone call,” “robocalling” and “robotic voice” in the
notice language is misleading and confusing. Instead, the notices should always be clear that
class members must have received a marketing call with a prerecorded message or artificial
voice.

B. Use “prior express consent” rather than “written consent” or “unsolicited.”

The TCPA requires that a caller using a marketing prerecorded message or artificial voice
obtain the “prior express consent” of the called party. 47U.S.C. § 227(b)(1)(A), (B). What
suffices as “prior express consent” is subject to interpretation by the FCC and the Courts, and has
evolved over time. The sufficiency of the written consent is at issue in this litigation. (Doc. 74,
at 34-35.) The notice, at times, uses the term “prior written consent” and variations thereof.
(Doc. 93-1, at 22, 27.) To be clear, pursuant to Rule 23, the term should always be “prior

express consent.”

Page 13- Der’s RESP. TO PL’s MTN. FOR
QB\49115077.1 APPROVAL OF CLASS NOTICE PLAN

QUARLES & BRADY LLP
ATTORNEYS AT LAW


Thereby certify that I served the foregoing Defendant ViSalus, Inc.’s Response to

Plaintiff's Motion for Approval of Class Notice Plan on:

Scott F. Kocher

Stephen Joseph Voorhees
ForRuM LAw Group LLC

811 S.W. Naito Parkway, Suite 420
Portland, Oregon 97204
Telephone: 503.445.2102
Fax: 503.445.2120

Emails:
scott@forumlawgroup.com
stephen@forumlawgroup.com
Attorneys for Plaintiff

Stefan Coleman

LAW OFFICES OF STEFAN COLEMAN, LLC
201 S. Biscayne Blvd.

28th Floor

Miami, Florida 33131

Tel: 877.333.9427

Fax: 888.498.8946

Email: law@stefancoleman.com
Attorneys for Plaintiff

Rafey S. Balabanian (pro hac vice)
Benjamin H, Richman (pro hac vice)
Eve-Lynn Rapp (pro hac vice)

Lily Hough

EDELSON PC

350 North LaSalle Street, Suite 1300
Chicago, Illinois 60654

Telephone: 312.589.6370

Fax: 312.589.6378

Emails:

rbalabanian@edelson.com
brichman@edelson.com
Ihough@edelson.com

erapp@edelson.com
Attorneys for Plaintiff

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

CM/ECF system transmission.

oO E-mail. As required by Local Rule 5-11(b), 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.

Hand-delivery.

OoOoOoaodq

Page 1 - Certificate of Service

QB\49115077.1

Facsimile communication device.

First-class mail, postage prepaid.

Overnight courier, delivery prepaid.

QUARLES & BRADY LLP

ATTORNEYS AT LAW
TELEPH
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