1

 Stipulations

The following facts are agreed to and admitted by both ViSalus and Ms. 

Wakefield.

1. Plaintiff Lori Wakefield is a citizen of Oregon and a resident of Clackamas 

County. 

2. Defendant ViSalus is a Nevada corporation with a principal place of 

business in Michigan. 

3. ViSalus is a multi-level marketing company, also known as direct selling or 

network marketing, that sells weight-loss products and dietary supplements. Such 

products have included at times a variety of “kits”—such as the “Balance Kit,” “ShapeKit,” “Core Kit,” “Transformation Kit,” and “Challenge Kit,” combining different 

products depending on customer choice—that customers choose based on what kind of 

result they’re looking for, from losing weight to building muscle. 

4. ViSalus makes money primarily through its “promoters,” independent 

contractors who sell ViSalus products through their own business networks. 

5. ViSalus supports and incentivizes promoters by building value in its 

products, opportunities and company, providing training and workshops, creating 

collateral marketing materials to help promoters sell the products, and offering enticing 

rewards for the highest-ranking promoters.

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6. Promoters must enroll with ViSalus, which requires submitting a promoter 

application either online (through ViSalus’s website) or in print (and that information is 

manually entered into ViSalus’s computer system). Consumers may purchase products 

directly from ViSalus by submitting a purchase form either through ViSalus’s website or 

on a print form. 

7. Whether submitted online or in print, the promoter applications are 

identical and the process for enrollment has been the same since 2011. 

8. All active ViSalus promoters have access to an online “Vi-Net” account 

(provided they pay the fee for a Vi-Net account). 

9. ViSalus also maintains an internal online database—the “Exigo” system—

which keeps live records of the information on individuals’ Vi-Net accounts. 

10. In June or July 2012, ViSalus created and employed a team of outbound 

calling agents collectively referred to within the company as “Outbound Support.” 

11. Although the original purpose of Outbound Support was to contact people 

who had attempted to purchase products but whose credit cards were declined, the agents

eventually began to call customers to inform them of various marketing campaigns. 

12. While these campaigns varied in topic, the calls were made for the same 

general purpose: to retain customers and generate revenue for ViSalus. 

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13. The Outbound Support team initially dialed telephone numbers manually 

using an Avaya telephone system. However, sometime in or around 2013 or 2014, 

ViSalus updated its Avaya system with a feature called the Proactive Outreach Manager 

(“POM”), which enabled it to place autodialed and agentless calls. ViSalus stopped 

conducting manually dialed mass-calling marketing campaigns once it had POM. 

14. In 2013, ViSalus began downsizing the company, reducing its overall 

number of employees. 

15. ViSalus placed calls through POM using a systematic two-step process: 

first, ViSalus created a contact list for the campaign, utilizing information from the Exigo 

system such as whether a customer had become “inactive;” then, an Outbound Support 

agent uploaded the contact list to POM and assigned it to run with the appropriate 

campaign. 

16. Once the contact list was uploaded to POM, the Outbound Support team 

could begin placing calls with the click of a button. Ex. A, Composite of POM 

Instructions (explaining that once you “[c]lick on the play button” all the caller would 

have to do is “verify Campaign in running”).

17. With POM, ViSalus used two campaign strategies: “Press One” calls 

(where a prerecorded or artificial voice instructed customers to “press [1] to be connected 

to a live person now”), and “voice casting” calls (where an audio clip played a 

prerecorded callback message). Ex. B, Excerpts of January 20, 2017 Deposition of Justin 

Call (“Call Dep.”) at 98:23-24, 72:11-73:15.

18. “Press One” and “voice casting” calls were all placed through POM. 

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19. ViSalus’s process for placing prerecorded calls remained the same until the 

Outbound Support team was dissolved in January 2016. 

20. Ms. Wakefield briefly signed up to be a ViSalus promoter in February 

2012. 

21. Ms. Wakefield subsequently ended her affiliation with the company. 

22. Ms. Wakefield received calls from ViSalus in April 2015, but the exact 

number of calls received is in dispute. 

23. Each call was directed to a landline telephone. Each call was intended to 

sell ViSalus’s products. 

24. At least two of the telephone calls may have been from a live person.

25. Two of the telephone calls by ViSalus to the landline for the Wakefield 

residence in April 2015 may have used a prerecorded message. 

26. Ms. Wakefield received at least five calls from ViSalus between March 1, 

2015 and May 30, 2015, but the Parties do not agree on whether those calls were from a 

live person or contained an artificial or prerecorded voice. 

27. Ms. Wakefield operated a home daycare for children in April 2015. 

28. On April 8, 2015, Ms. Wakefield first contacted plaintiff’s counsel Stefan 

Coleman by email through his website. 

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EXHIBIT A

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EXHIBIT B

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·1· · · · · · · · UNITED STATES DISTRICT COURT

· · · · · · · · · · · DISTRICT OF OREGON

·2

·3· LORI WAKEFIELD, on behalf of

· · themselves and a class of

·4· others similarly situated,

·5· · · ·Plaintiff,· · · · · · · · · ·No. 3:15-cv-01857-BR

·6· V.

·7· VISALUS, INC., a Nevada

· · Corporation,

·8

· · · · ·Defendant.

·9

10

11

12· ********************************************************

13· · · · · · · · ·ORAL DEPOSITION OF JUSTIN CALL

14· · · · · · · · · · · ·VOLUME 1

15· ********************************************************

16

17· · · ·ANSWERS AND DEPOSITION OF JUSTIN CALL, produced as

18· a witness at the instance of the Plaintiff, taken in the

19· above-styled and -numbered cause on the 20th day of

20· January, 2017, A.D., beginning at 9:57 a.m., before

21· Brandy Cooper, a Certified Shorthand Reporter in and for

22· the State of Texas, in the offices of Esquire Deposition

23· Solutions, located at 1700 Pacific Avenue, Suite 1000,

24· Dallas, Texas, in accordance with the Federal Rules of

25· Civil Procedure and the agreement hereinafter set forth.

Case 3:15-cv-01857-SI Document 271-1 Filed 04/09/19 Page 28 of 33
·1· · · A.· ·Well --

·2· · · Q.· ·Sorry.· Go ahead.

·3· · · A.· ·No, go ahead.· POM is not the only way to play

·4· a prerecorded message, but as far as to my awareness and

·5· any involvement, that would be what it was limited to is

·6· the POM instance of that.· There's lots of different

·7· things that do prerecorded messages.

·8· · · Q.· ·Did Visalus use any of the other mechanisms

·9· that you've identified?

10· · · · · · · · MS. ANCHORS:· Foundation.

11· · · A.· ·I mean, we -- yeah, we've done voice casting

12· before, yes.

13· · · Q.· ·(BY MR. POLLOCK)· Okay.

14· · · A.· ·With -- it's basically just a message saying

15· your credit card declined, please contact us.

16· · · Q.· ·When did Visalus begin using voice casting?

17· · · · · · · · MS. ANCHORS:· Foundation.

18· · · A.· ·I don't know.

19· · · Q.· ·(BY MR. POLLOCK)· Prior to beginning to use

20· POM?

21· · · A.· ·I'm not -- I don't know.· I mean, I just don't

22· know.· We used it with POM.· We just called it voice

23· casting, you know, it was with POM or with -- you know,

24· so that's just -- that was the terminology that we used,

25· voice casting.

Case 3:15-cv-01857-SI Document 271-1 Filed 04/09/19 Page 29 of 33
·1· · · Q.· ·Okay.· And then the prerecorded messages

·2· whether they were sent via voice cast, POM or some

·3· other --

·4· · · · · · · · MS. ANCHORS:· Form.

·5· · · A.· ·And voice casting, I'm saying that's what I

·6· called them with POM.

·7· · · Q.· ·(BY MR. POLLOCK)· Got it.

·8· · · A.· ·Like let's send a voice cast out through POM.

·9· · · Q.· ·Okay.· So for the messages for the voice casts,

10· who created those messages?

11· · · A.· ·I can -- I mean, the only one I can recall

12· specifically was one that Blake -- Blake did about

13· registering for an event.· And I know we had -- I know

14· we had one for the declined credit cards, but I don't

15· recall who did that message.

16· · · Q.· ·Are you aware of any voice casts done in

17· conjunction with a Winback campaign?

18· · · A.· ·Not that I specifically recall.

19· · · Q.· ·Okay.· So I want to go ahead and play an audio

20· clip for you.

21· · · A.· ·Okay.

22· · · Q.· ·Let me restart that.

23· · · · · · · · ·(Audio portion was played.)

24· · · Q.· ·(BY MR. POLLOCK)· Have you ever heard that

25· message before?

Case 3:15-cv-01857-SI Document 271-1 Filed 04/09/19 Page 30 of 33
·1· end of 2015 when the outreach team existed?

·2· · · A.· ·So it was a pretty short window of time.· So

·3· wanted to try everybody because we wanted -- you know,

·4· we wanted -- you don't get all the rates.· Your open

·5· rates on e-mails are pretty small so you want to try to

·6· reach more people because obviously it's good for the

·7· company if people come back.· And it's good for them if

·8· they can come back to do something they've purchased at

·9· full price and come back and do it half price.· And we

10· quickly realized that the old ones don't -- aren't

11· productive, and we don't have enough people and enough

12· manpower to hit them all anyway, so we focused on the

13· more recent three-to-nine-month period.

14· · · Q.· ·Okay.· So when a campaign was started and

15· people were receiving calls, say a Winback campaign, do

16· you have any understanding as to what the first thing

17· that the call recipient would hear would be?

18· · · A.· ·I don't.

19· · · Q.· ·Okay.· Do you know what a Press One campaign

20· is?

21· · · A.· ·Yes.

22· · · Q.· ·What is a Press One campaign?

23· · · A.· ·It's -- if you Press One to be connected to a

24· live person now.

25· · · Q.· ·Is that typically how Winback campaigns were

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·1· STATE OF TEXAS )

·2· · · ·I, Brandy Cooper, a Certified Shorthand Reporter

·3· duly commissioned and qualified in and for the State of

·4· Texas, do hereby certify that there came before me on

·5· the 20th day of January, A.D., 2017, at 9:57 a.m., at

·6· the offices of Esquire Deposition Solutions, located at

·7· 1700 Pacific Avenue, Suite 1000, in the City of Dallas,

·8· State of Texas, the following named person, to wit:

·9· JUSTIN CALL, who was by me duly cautioned and sworn to

10· testify the truth, the whole truth and nothing but the

11· truth, of knowledge touching and concerning the matters

12· in controversy in this cause; and that he was thereupon

13· carefully examined upon his oath, and his examination

14· was reduced to writing under my supervision; that the

15· deposition is a true record of the testimony given by

16· the witness.

17· · · · I further certify that the witness has requested a

18· review pursuant to Rule 30(e)(2).

19· · · · I further certify that I am neither attorney or

20· counsel for, nor related to or employed by any of the

21· parties to the action in which this deposition is taken,

22· and further that I am not a relative or employee of any

23· attorney or counsel employed by the parties hereto, or

24· financially interested in the action.

25· · · ·CERTIFIED TO BY ME on this 23rd day of January,

Case 3:15-cv-01857-SI Document 271-1 Filed 04/09/19 Page 32 of 33
·1· 2017.

·2

·3

· · · · · · · · · · · ·______________________________

·4· · · · · · · · · · ·BRANDY COOPER, CSR

· · · · · · · · · · · ·Certification Expires 12-31-2018

·5· · · · · · · · · · ·Firm Registration No. 286

· · · · · · · · · · · ·1700 Pacific Avenue, Suite 1000

·6· · · · · · · · · · ·Dallas, Texas· 75201

· · · · · · · · · · · ·(214) 257-1436

·7

·8

·9

10

11

12· Taxable cost of original charged to Plaintiff:

· · $_______________

13· Attorney:· Mr. Pollock

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