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Scott F. Kocher, OSB#015088

FORUM LAW GROUP

811 S.W. Naito Parkway, Suite 420

Portland, Oregon 97204

Tel: 503.445.2120

Fax: 503.445.2120

Rafey S. Balabanian, ILB #6285687*

rbalabanian@edelson.com

Eve-Lynn J. Rapp, ILB #6300632*

erapp@edelson.com

EDELSON PC

123 Townsend Street, Suite 100

San Francisco, California 94107

Tel: 415.212.9300

Fax: 415.373.9435

* Admitted pro hac vice

(additional counsel listed on signature page)

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON

LORI WAKEFIELD, on behalf of 

themselves and a class of others similarly 

situated,

 Plaintiff,

v.

VISALUS, INC., a Nevada Corporation,

Defendant.

No. 3:15-cv-01857-BR

PLAINTIFF’S MOTION FOR 

APPROVAL OF CLASS NOTICE 

PLAN

Request for Oral Argument
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LR 7-1 CERTIFICATION

The undersigned counsel certify that they have made a good faith effort to confer with 

counsel for Defendant ViSalus, Inc. (“Defendant”) but, at the time of filing the instant motion, 

Defendant has not taken a position on whether it opposes the relief requested herein.

MOTION AND MEMORANDUM OF LAW

In accordance with the Court’s June 23, 2017 Order granting in part Plaintiff Lori 

Wakefield’s Renewed Motion for Class Certification (Dkt. 81, the “Certification Order”), and 

pursuant to the requirements for providing class notice under Federal Rule 23(c), Plaintiff now 

provides the Court with a plan for notifying class members of the pendency of this action and the 

right to opt-out. 

I. INTRODUCTION

On June 23, 2017, after full briefing on Plaintiff’s Renewed Motion for Class 

Certification, the Court granted certification of a class defined as:

All individuals in the United States who received a telephone call made by or on behalf 

of ViSalus: (1) promoting ViSalus’s products or services; (2) where such call featured an 

artificial or prerecorded voice; and (3) where neither ViSalus nor its agents had any 

current record of prior express written consent to place such call at the time such call was 

made.1

(Dkt. 81) (the “Robocall Class.”) 

Pursuant to the Court’s August 8, 2017 Case Management Order (Dkt. 87), Plaintiff

assumed the task of directing to the Robocall Class notice of this pending action. To ensure that 

the notice complies with Due Process and Rule 23(c)(2), Plaintiff retained Kurtzman Carson 

Consultants (“KCC”), a reputable class action administrator that is familiar with the 

requirements of Due Process and Rule 23(c)(2) and has experience creating notice plans in 

 

1 To date, Plaintiff has obtained approximately 1.9 million phone numbers from Defendant’s 

records, through the course of discovery, which includes the phone numbers for the members of the 

Robocall Class.
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similar class actions. With KCC’s assistance, Plaintiff developed a proposed notice plan (the 

“Notice Plan”), which it submits with this Motion for the Court’s approval.

2 As described in 

detail below, Plaintiff proposes a three-part Notice Plan that includes: (1) individual email notice 

to class members who can be identified with reasonable effort; (2) an online media campaign in 

the form of banner advertisements; and (3) a dedicated case website with a toll-free number for 

further class member support. The form and manner of the proposed Notice Plan provides the 

best notice practicable under the circumstances, thus comporting with Rule 23(c) and Due

Process.

Accordingly, Plaintiff respectfully requests that the Court approve the proposed Notice 

Plan.

II. THE PROPOSED NOTICE PLAN IS THE BEST PRACTICABLE UNDER THE 

CIRCUMSTANCES.

Rule 23(c)(2)(B) provides that “[f]or any class certified under Rule 23(b)(3), the court 

must direct to class members the best notice practicable under the circumstances, including 

individual notice to all members who can be identified through reasonable effort.” Fed. R. Civ. 

P. 23(c)(2)(B); Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2558 (2011). Notice plans are 

not expected to reach every class member, see Silber v. Mabon, 18 F.3d 1449, 1453 (9th Cir. 

1994, and the Federal Judicial Center has concluded that a notice plan that reaches at least 70% 

of the class is reasonable. Federal Judicial Center, Judge’s Class Action Notice and Claims 

Process Checklist and Plain Language Guide (2010), p. 3. Ultimately, “the type of notice to 

which a member of a class is entitled [under Rule 23(c)] depends upon the information available 

to the parties about that person.” In re Nissan Motor Corp. Antitrust Litigation, 552 F.2d 1088, 

1098 (5th Cir. 1977); cf. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 318 (U.S. 

 

2 The proposed Notice Plan is attached to the Declaration of Carla Peak (“Peak Declaration”) as 

Exhibit 1.
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1950) (explaining that “published notice” is acceptable where individuals’ “addresses are 

unknown to the [party tasked with giving notice]”); Bruno v. Quten Research Inst., LLC, No. 

SACV1100173DOCEX, 2012 WL 12886843, at *5 (C.D. Cal. July 16, 2012) (approving email 

notification to customers who purchased a product online). Here, Plaintiff’s proposed Notice 

Plan—a multi-tiered approach that includes direct email notice, publication in targeted media, 

and a case-specific website—is the best practicable under the circumstances. 

First, the proposed Notice Plan provides “individual notice to all members who can be 

identified through reasonable effort.” Fed. R. Civ. P. 23(c). Email notification is particularly 

suitable to this case, given that the bulk of individuals who provided their phone numbers to 

Defendant provided their email addresses as an alternative form of contact, not to mention that 

all class members utilized the online Vi-Net portal to provide their phone numbers to Defendant 

in the first place. See Browning v. Yahoo! Inc., C04-01463 HRL, 2006 U.S. Dist. LEXIS 100686, 

*24(N.D. Cal. Dec. 27, 2006) (approving email notification to class members in class action 

settlement because the class members’ “allegations arise from their visits to Defendants’ Internet 

websites, demonstrating that the Settlement Class Members are familiar and comfortable with 

email and the Internet”). Here, Plaintiff has amassed from Defendant’s records a pool of phone 

numbers from which class members can be identified3and has taken significant measures to 

 

3 Defendant does not have complete records indicating, for each contact list, whether the telephone 

system actually called the telephone number or whether a pre-recorded message was delivered on the call. 

In that vein, the pool of phone numbers that Plaintiff collected from Defendants records is somewhat 

over-inclusive. As the Court held, this over-inclusiveness does not preclude certification of the Robocall 

Class (see Certification Order at 14-15 (“The possibility that some members within the class may not 

have sustained injury does not preclude certification of the class.”)), and it also ensures that all class 

members are receiving the best notice practicable. See Macarz v. Transworld Sys., Inc., 201 F.R.D. 54, 61 

(D. Conn. Jan. 8, 2001) (allowing individual notice to an over-inclusive list of class members because the 

list contained the entire universe of class members).
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determine email addresses for as many individuals in that pool as possible.

4 Under the proposed 

Notice Plan, direct email notice is expected to reach approximately 63 percent of the pool. (See 

Peak Declaration ¶ 15.) And because direct notice is somewhat over-inclusive, the percentage of 

class members who will receive the direct notice will be greater than that. The proposed form of 

direct email notice (the “Email Notice”) is attached to the Notice Plan as Attachment A.

Second, the proposed Notice Plan supplements the Email Notice with a number and 

variety of targeted publications sufficient to disseminate adequate and reasonable notice to any

potential class members who don’t receive direct notice by email. Specifically, KCC will publish 

notice as Internet banner ads (the “Publication Notice”) designed to generate approximately 43 

million impressions that target the class demographics (adults 18 and over) across the Google 

Display Network, which is estimated to reach 18 percent of adults 18 and older. (See id. ¶¶ 11, 

15.) Combining the Email Notice and Publication Notice, the Notice Plan is thus expected to 

reach 70 percent of putative class members. (Id. ¶¶ 15, 18.) The proposed forms of Publication 

Notice are attached to the Notice Plan as Attachment B. 

Third, the Publication Notice, along with the Email Notice, will direct class members to 

a case-specific website (with an easily-remembered domain), which will be created and 

maintained by KCC. (See id. ¶ 12.) The case website will contain the traditional long form notice

(the “Long Form Website Notice”), relevant court documents and dates, answers to frequently 

 

4 Some, but not all, of Defendant’s records of phone numbers also contained email addresses 

and/or mailing addresses associated with the phone number. Specifically, Plaintiff was able to uncover 

from Defendant’s records email addresses for approximately 53.7% of the pool and mailing addresses for 

approximately 34.7% of the pool. Plaintiff then, with the assistance of KCC, will use "reverse phone 

lookups” and “email appends” to retrieve any email addresses associated with the remaining phone 

numbers in the pool. First, KCC will perform reverse phone lookups on 224,856 individuals (the 

remaining 11.6% of the pool of phone numbers that did not have an associated email or postal address in 

Defendant’s records) to locate postal addresses. (See Peak Declaration ¶ 7.) KCC will then perform an 

email append on all postal addresses (both those in Defendant’s records and those resulting from the 

reverse lookup) to locate valid email addresses. (Id. ¶ 10.)
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asked questions, and other pertinent case information. (Id.) 5 The website will also contain a tollfree number through which class members can access additional settlement information, request 

notice packets, and obtain contact information for Plaintiff’s counsel and KCC. (Id.) The 

proposed Long Form Website Notice is attached to the Notice Plan as Attachment C. 

In short, the proposed Notice Plan is the best practicable under the circumstances and is 

one that has proven effective. Indeed, notice plans analogous to the instant Plan have been 

approved by other courts. See, e.g., Flynn v. Sony Elecs., Inc., No. 09–cv–2109, 2015 WL 

128039, at *4 (S.D. Cal. Jan. 7, 2015) (approving a multi-tiered notice plan that included 

individualized emails to class members for whom the parties had contact information,

publication of notice in national magazines, and a case-specific website); cf. Lilly v. Jamba Juice 

Co., 308 F.R.D. 231, 238–39 (N.D. Cal. 2014) (finding that notice plan comported with due 

process where “plaintiffs indicated that they [would] attempt to provide direct notice to many 

retail customers whose contact information may be on file with the retailer” and that “an 

extensive but targeted internet and print media campaign [would] be aimed at providing notice to 

other potential class members”). Plaintiff respectfully submits that here too, a combination of 

direct email notifications, targeted Internet publications, and a case-specific website offers the 

 

5 The Manual For Complex Litigation confirms that using a dedicated website to provide 

supplemental information is an effective notice technique:

Posting notices on dedicated Internet sites, likely to be visited by class members and 

linked to more detailed certification information, is a useful supplement to individual

notice, might be provided at a relatively low cost, and will become increasingly useful as 

the percentage of the population that regularly relies on the Internet for information 

increases. An advantage of Internet notice is that follow- up information can easily be 

added, and lists can be created to notify class members of changes that may occur during 

the litigation. Similarly, referring class members to an Internet site for further information 

can provide complete access to a wide range of information about a class settlement. 

Many courts include the Internet as a component of class certification and class 

settlement notice programs.

Ann. Manual Complex Lit. § 21.311 (4th ed.).
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best practicable notice under the circumstances. Accordingly, the Court should approve the 

proposed Notice Plan.

III. THE PROPOSED FORM AND CONTENT OF THE NOTICE ARE EASY TO 

READ AND UNDERSTAND, AND THUS, COMPORT WITH RULE 23 AND DUE 

PROCESS.

Adequate notice should be easily understood by the average class member. Alba Conte & 

Herbert B. Newberg, 4 Newberg on Class Actions, §11:53, 167 (4th ed. 2002). That is, it should 

use clear and concise language that explains: 1) the nature of the action; 2) the definition of the 

class certified; 3) the class claims and defenses at issue; 4) that class members may enter an 

appearance through counsel if so desired; 5) that class members may request to be excluded from 

the class; and 6) that the effect of a class judgement shall be binding on all class members. Fed. 

R. Civ. 23(c)(2)(B); Alba Conte & Herbert B. Newberg, 5 Newberg on Class Actions; § 8:12 (5th 

ed. 2013). “The federal judicial center has created illustrative clear-notice forms that provide a 

helpful starting point for actions similar to those described in the forms.” Adv. Cmte. Notes 

(2003) to Fed. R. Civ. P. 23(c).

The form and content of the Email Notice, Publication Notice, and Long Form Website 

Notice are based upon the question and answer format suggested by the Federal Judicial Center 

and comply with Rule 23(c)(2)(B) and Due Process. Moreover, each notification is written in 

plain language, is easy to read, will be readily understood by the average class member, and thus 

satisfy the requirements of Rule 23 and Due Process. The Court should therefore approve the

form and content of the proposed Notice Plan as well.

IV. CONCLUSION

For the reasons explained above, Plaintiff Lori Wakefield respectfully requests that the 

Court enter an Order (1) approving the proposed Notice Plan, finding that it comports with both 
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Rule 23 and Due Process, (2) authorizing the Email Notice to be sent by email to all class 

members for whom Plaintiff has email addresses, (3) authorizing the online dissemination of the 

Publication Notice, and (4) authorizing the creation of a case-specific website that contains the 

Long Form Website Notice.

Respectfully submitted, 

LORI WAKEFIELD, individually and on behalf

of all similarly situated individuals,

Dated: October 16, 2017 /s/ Lily E. Hough

Rafey S. Balabanian, ILB #6285687*

rbalabanian@edelson.com

Eve-Lynn J. Rapp, ILB #6300632*

erapp@edelson.com

Lily Hough, SBN #315277*

EDELSON PC

123 Townsend Street, Suite 100

San Francisco, California 94107

Tel: 415.212.9300

Fax: 415.373.9435

Attorneys for Plaintiff and the Class
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CERTIFICATE OF SERVICE

I, Lily E. Hough, an attorney, certify that on October 16, 2017, I served the foregoing by 

causing true and accurate copies of such paper to be transmitted to all counsel of record via the 

Court’s CM/ECF electronic filing system. 

/s/ Lily E. Hough