PLAINTIFF’S STATEMENT REGARDING

SCHEDULING ISSUES

FORUM LAW GROUP 

Scott F. Kocher, OSB #015088 

811 S.W. Naito Parkway, Suite 420 

Portland, Oregon 97204 

Tel: 503.445.2120 

Fax: 503.445.2120 

DOVEL & LUNER, LLP 

Simon Franzini, Cal. Bar #287631* 

simon@dovel.com 

Gregory S. Dovel, Cal. Bar #135387* 

greg@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, Cal. Bar #315962* 

rbalabanian@edelson.com 

J. Aaron Lawson, Cal. Bar #319306* 

alawson@edelson.com 

150 California Street, 18th Floor 

San Francisco, California 94111 

Tel: 415.212.9300 

Fax: 415.373.9435 

Eve-Lynn Rapp Cal. Bar #342892*

erapp@edelson.com

Edelson PC 

2101 Pearl Street

Boulder, Colorado 80302

Tel: 720.741.0076

Fax: 720.741.0081

*Admitted pro hac vice 

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-SI

PLAINTIFF’S STATEMENT 

REGARDING SCHEDULING 

ISSUES (SEE DKT. 451) 

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PLAINTIFF’S STATEMENT REGARDING

SCHEDULING ISSUES

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Plaintiff Lori Wakefield submits the following proposal for next steps in this litigation, 

per the Court’s order of April 25, 2023. (Dkt. 451.) For the reasons that follow, the parties should 

issue notice of the verdict to the Class and allow Class Members to file claims to recover the 

statutorily mandated $500 per violation of the TCPA before accepting briefing and allowing for 

further discovery on whether an aggregate judgment exceeds constitutional limits. Should the 

Court agree, prior to ViSalus’s appeal, the parties had fully briefed issues related to the notice 

and claim process. (Dkts. 396, 413, 419.) Plaintiff is attaching minor edits to the proposed 

documents and the parties agree that issues related to notice, claims, and whether ViSalus should 

pay for those costs can be decided based on that briefing. 

I. The parties should issue notice and conduct a claims process before determining 

whether the aggregate judgment in this case exceeds constitutional limits. 

The pending constitutional issue in this case—whether an aggregate judgment of $925 

million violates Defendant ViSalus Inc.’s due process rights, see Wakefield v. ViSalus, 51 F.4th 

1109, 1125 (9th Cir. 2022)—should not be resolved until after notice of the verdict is provided to 

the certified Class, Class Members are allowed to make claims against the verdict, those claims 

are vetted, and the Court issues an award of attorney’s fees, and a service award to the named 

plaintiff. 

A. The circumstances of this case counsel against immediately resolving 

ViSalus’s constitutional challenge. 

There are several reasons to leave the constitutional issue for last. 

First, it would be premature to resolve any constitutional questions related to the 

aggregate verdict amount at this stage. The judgment entered by the Court is for “an amount not 

to exceed $925,218,000.” (Dkt. 383 at 2.) Until the judgment is for a fixed amount—which can 

only occur after claims, attorneys’ fees, incentive awards, any cy pres is determined—any 

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PLAINTIFF’S STATEMENT REGARDING

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constitutional question is an abstract one that the Court should refrain from considering. See 

Perez v. Rash, Curtis & Assocs., No. 16-cv-3396-YGR, 2020 WL 1904533, at *7 (N.D. Cal. Apr. 

17, 2020) (noting that the defendant’s challenge to the overall award could not have been raised 

before damages were “fixed”). Indeed, this is one of the very reasons that the Ninth Circuit has 

held that the potential excessiveness of statutory damages is not an appropriate reason to deny 

class certification: the court held in Bateman v. American Multi-Cinema, Inc. that evaluation of a 

potential statutory damages award at class certification is “unduly speculative” “[b]ecause we do 

not know what amount of damages Bateman will seek nor how many individuals will ultimately 

claim the benefit of any damages awarded should plaintiffs prevail.” 623 F.3d 708, 723 (9th Cir. 

2010) (emphasis added). The same is true here. The judgment previously entered by the court 

was for an amount “not to exceed $925,218,000.” (Dkt. 383 at 2 (emphasis added).) Without a 

fixed amount, ViSalus’s constitutional challenge is not ready for decision. See Matal v. Tam, 582 

U.S. 218, 230-31 (2017) (“We have often stressed that it is important to avoid the premature 

adjudication of constitutional questions.”) (cleaned up). 

Earlier in this case, ViSalus essentially agreed that its current challenge isn’t ripe arguing 

that “claims administration issues should be resolved before entry of judgment.” (Dkt. 382 at 2.) 

ViSalus insisted that “the most reasonable approach” would be first to engage in a claims process 

before fixing ViSalus’s total liability. (Id. at 4; see Ex. 1 (Oct. 11, 2019 Status Conference Tr.) at 

21:21-23 (Mr. Schatz: “I mean, the first thing that has to happen is the claims process [] to 

determine the proper amount.”).) The Court disposed of that challenge by fixing a maximum 

judgment, while acknowledging that the final amount of damages might be lower, in order to 

facilitate appellate review. (See Oct. 11, 2019 Status Conference Tr. at 21:6-18.) Now that the 

appeal is concluded and the jury’s verdict stands, just as ViSalus previously urged, the parties 

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PLAINTIFF’S STATEMENT REGARDING

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should determine through a claims process a fixed amount of ViSalus’s liability, based upon the 

jury’s verdict, before any constitutional limits are assessed. 

A related reason that ViSalus’s constitutional challenge is not yet ready for decision is 

that ViSalus will be making merits challenges to the claims of certain Class Members. As the 

Court has observed, for Class Members with landlines, ViSalus may raise good-faith objections 

that the phone number in question was primarily used for purposes of a home-based business. 

(See id. at 18:1-9.) These merits-based challenges, which go to manageable individual issues not 

covered by the jury’s verdict, must be resolved before a fixed judgment amount can be settled on. 

And the only way to resolve these challenges is through a claims process.

Second, even if the constitutional question is squarely presented (and it is not), it is wellsettled that adjudication of constitutional questions should come last. Spector Motor Service, Inc. 

v. McLaughlin, 323 U.S. 101, 105 (1944) (“If there is one doctrine more deeply rooted than any 

other in the process of constitutional adjudication, it is that we ought not to pass on questions of 

constitutionality . . . unless such adjudication is unavoidable.”). Yet there are statutory questions 

relating to the judgment waiting to be resolved in this case. Plaintiff regards it as likely that not 

all available funds will be claimed during a claims process. See Briseno v. ConAgra Foods, Inc., 

844 F.3d 1121, 1130 (9th Cir. 2017) (“It is not unusual for only 10 or 15% of the class members 

to bother filing claims.”) (quotations omitted). At typical participation rates, the total aggregate 

amount paid to Class Members is likely to be considerably less than the “not to exceed” amount 

and in-line with any potential reasonable reduction that could be suggested. And as for any 

residue, Ninth Circuit precedent establishes a menu of options for what to do with unclaimed 

funds, although critically this is not a constitutional issue but a statutory one. See Six (6) Mexican 

Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1307-09 (9th Cir. 1990) (holding that unclaimed 

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funds can either (1) be distributed to a cy pres recipient, (2) escheat to the state, or (3) revert to 

the defendant, but that the choice is guided by the purposes of the underlying statute). How the 

Court resolves that issue, should it arise, will likely bear on the resolution of any due process 

issues presented by the jury’s verdict, and may even obviate it. 

This point is particularly important in light of the Ninth Circuit’s reasons for extending 

the Williams rule to aggregated awards, specifically its holding that at some point the 

“compensation and deterrence” rationales for statutory damage awards become “overshadowed 

by punitive elements.” Wakefield, 51 F.4th at 1122. The Court can only determine whether the 

TCPA’s compensatory and deterrence rationales are overshadowed by the punitive effect of the 

jury’s verdict if it first determines the amount of claimed compensation at issue. 

Third, and relatedly, it is undisputed that the $500 per call award in the TCPA is

constitutional. See id. at 1120. Reducing the judgment now can only be done by reducing the 

amount of any per call award, just as ViSalus proposed in its first motion in this regard. (Dkt. 358 

at 3, 11 (requesting the Court reject the $500 per call statutory award in favor of an award of $1 

per call).) Indeed, as explained below, that is the only way in which an aggregate award in a 

private class action has ever been reduced prior to judgment or a claims process. Such an 

approach necessarily impairs the rights of Class Members at the benefit of ViSalus. Moreover, as 

the Court previously observed, courts who endeavor to reduce individual statutory damage 

awards are engaging in a quintessentially legislative function without any rigorous methodology. 

(Dkt. 377 at 9-12.) The Court should avoid this kind of uncertain endeavor if at all possible, 

particularly since the Ninth Circuit refused to find that the aggregate award here was 

unconstitutional, and “stress[ed] that only very rarely will an aggregated statutory damages 

award meet the exacting Williams standard and exceed constitutional limitations where the perCase 3:15-cv-01857-SI Document 455 Filed 05/09/23 Page 5 of 13
PLAINTIFF’S STATEMENT REGARDING

SCHEDULING ISSUES

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violation amount does not.” 51 F.4th at 1123. Moreover, to ensure fairness to Class Members, 

Plaintiff submits that any reduction in the verdict should come out of any potential cy pres

distribution, or from any potential reversion of funds, rather than from claimed funds, if at all 

possible. 

Finally, doing a claims process now is more efficient, and more fair to Class Members 

who prevailed at a jury trial more than 3 years ago but who have yet to see any of the benefits 

they are entitled to. Doing the claims process first allows the parties to resolve the remaining 

issues here, including the constitutional issues, as well as attorney’s fees and a service award, in 

one stroke, ensuring the most efficient end to this case. As the Court indicated, Plaintiff would be 

entitled to reasonable discovery into any factual argument ViSalus makes in support of reducing 

the aggregate amount on constitutional grounds. Given the length of time since the trial in this 

case, efficiency should be prioritized. 

B. The circumstances of this case distinguish it from other cases involving 

similar constitutional challenges. 

 The Court also asked how constitutional reductions had been handled procedurally in 

other cases. The short answer is that the issue of damages is typically addressed before entry of 

judgment and before any needed claims process, but given the Ninth Circuit’s newly articulated 

test, the experience of other courts is not helpful here for a few reasons. First, some of these 

cases would not have involved a claims process, because the parties had the information 

necessary to pay class members without such a process. Second, even when a claims process was 

necessary, these cases did not involve lingering liability issues such as the residential versus 

business line issue that may preclude liability for a handful of Class Members. Third, in no case 

was it undisputed that the per violation award set by statute was itself constitutional. Reductions 

Case 3:15-cv-01857-SI Document 455 Filed 05/09/23 Page 6 of 13
PLAINTIFF’S STATEMENT REGARDING

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were calculated in nearly every case by simply reducing the per violation award, an approach 

that is potentially problematic here. 

 Two cases that fall in the first category (no claims process needed) are Perez v. Rash, 

Curtis & Associates, No. 16-cv-3396-YGR (N.D. Cal.), which was relied upon by the Court in 

previous orders, and Ramirez v. TransUnion, LLC, No. 12-cv-632 (N.D. Cal.). In both a 

reduction was considered prior to disbursement of the jury verdict, though both shed little light 

on which process is best because no reduction was ordered in either case. (Both cases also later 

settled—Perez following assignment of the defendant’s bad faith claim against its insurer, see

Perez, No. 16-cv-3396-YGR, ECF No. 451 at 3 (motion to approve distribution of settlement 

proceeds), and Ramirez following the Supreme Court’s decision holding that under a pretrial 

stipulation of fact many class members lacked standing, see Ramirez, No. 12-cv-632, ECF No. 

416 at 5-6.) 

 Another set of cases in which no claims process was required, but in which a reduction in 

damages was ordered, are those brought by states. See Texas v. Am. Blastfax, Inc., 164 F. Supp. 

2d 892, 900-01 (W.D. Tex. 2001); Maryland v. Universal Elections, Inc., 862 F. Supp. 2d 457, 

464-66 (D. Md. 2012). These are unhelpful simply because it was guaranteed in those cases that 

the aggregate penalty would be paid out in full, which is not a guarantee here, in light of the need 

for a claims process and the possibility of a cy pres distribution of unclaimed funds or a reversion 

of those funds to ViSalus. Moreover, in neither of these cases did the Court rely on the Due 

Process Clause as the basis for its reduction. American Blastfax thought the total penalty was 

“unreasonable” and disregarded the law’s plain language. See 164 F. Supp. 2d at 900-01. And the 

court in Universal Elections awarded the state of Maryland only 10% of what it asked (which 

was itself 10% of the potential judgment following the district court’s grant of summary 

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PLAINTIFF’S STATEMENT REGARDING

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judgment), believing the state’s requested award to be “inequitable” but “without suggesting” 

that the award sought by the State “would necessarily be unconstitutional.” 862 F. Supp. 2d at 

464-66. 

 Cases both ordering a reduction and requiring a claims process are also unhelpful for 

various reasons. Consider first Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 

1301 (9th Cir. 1990). This case is distinguishable, of course, because the per violation award 

reduced by the Court was reduced within a prescribed statutory range, and not based directly 

upon the Due Process Clause. Id. at 1309-10. The appellate court in this case incorporated the Six 

Mexican Workers analysis into the due process analysis, but the statutory context is important, 

because it was understood that class members would be entitled to the entire per violation award 

if they made a claim. The only way to ensure that claiming class members receive the entire 

statutory amount here is to do the claims process first, before considering any constitutional 

issues. 

Golan v. Veritas Entertainment, LLC, previously relied upon heavily by ViSalus, also 

reduced damages (to $10 per call) following a verdict but before any claims process had 

occurred. See No. 14-cv-0069-ERW, 2017 WL 3923162, at *4 (E.D. Mo. Sept. 7, 2017) 

(asserting that Court’s chosen reduced damages “takes into account the significant time and 

expense needed to notify the class and distribute the damages to the class”). But the court did not 

consider the pros and cons of doing a claims process before reducing damages. Nor, as this Court 

has recognized, did the Golan court explain why it reduced damages in the manner in which it 

did, apart from its finding that aggregate damages were “unreasonable.” (Dkt. 377 at 11 (noting 

that Golan “failed to include any methodology or explanation of how the court reduced the 

allegedly unconstitutional damages.”).) Finally, there is no acknowledgment in Golan that the 

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PLAINTIFF’S STATEMENT REGARDING

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per violation award in the TCPA is permissible, and no indication that any lingering issues 

remained before a fixed judgment could be entered, such as the residential-or-business line issue 

that might bear on the claims of a handful of Class Members here. 

 A more recent case, Montera v. Premier Nutrition Corp., also reduced available statutory 

damages before a claims process (from $550 per violation to $50), although it did so by citing to 

concerns relating to punitive damages (No. 16-cv-6980-RS, ECF No. 293 at 10-12), a test the 

Ninth Circuit expressly “decline[d] to apply” to aggregated awards of statutory damages, 

Wakefield, 51 F.4th at 1122. It is routine to reduce a punitive damages award before entry of 

judgment, but as that is the wrong lens through which to analyze the question here, it isn’t clear 

that the same procedure should be adopted as well. Furthermore, there is no discussion in 

Montera about whether the per violation awards are constitutional (as is undisputed here), nor 

does there appear to be the potential for any challenges relating to the violations the jury found in 

that case. 

 In sum, existing examples provide little guidance about when ViSalus’s constitutional 

challenge to an aggregate statutory damages award should be considered here. Indeed, the issue 

of timing does not appear to have been presented or considered in any of these cases. Moreover, 

the lingering issues extant here, plus the general rule that statutory questions should be resolved 

before constitutional ones, show that the parties should issue notice and conduct a claims process 

before resolving ViSalus’s constitutional challenge. 

II. As to the mechanics of notice and a claims process, the Court should rule on the 

issues as briefed previously in this case (see Dkt. 396). 

The second issue the Court directed the parties to address is, in the event the Court orders 

the notice and a claims process to be completed before any due process issues are resolved, what 

that process would look like. Prior to the appeal, the parties had fully briefed this issue: Plaintiff 

Case 3:15-cv-01857-SI Document 455 Filed 05/09/23 Page 9 of 13
PLAINTIFF’S STATEMENT REGARDING

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had proposed a notice plan modeled on the notice issued following class certification, which the 

Court found to comport with due process. (See Dkts. 396 (motion to approve notice plan); 383 at 

2 (judgment incorporating findings regarding sufficiency of earlier notice); 396-1, ¶ 13 

(declaration from administrator of first notice campaign averring that first notice campaign had 

89% reach).) Plaintiff had also proposed a simple claims form which would provide enough 

information to determine whether or not a Class Member has a potentially valid claim based 

upon the jury verdict, and whether or not any landlines were used primarily for business 

purposes. (See Dkts. 396 at 7; 396-1, Ex. 1, Attachment B.) Although the parties met and 

conferred regarding this proposal (Dkt. 396 at 1), they were unable to come to an agreement. 

Defendant filed an opposition to Plaintiff’s proposal (Dkt. 413), and Plaintiff replied (Dkt. 419). 

 Following the scheduling call on April 25, 2023, the parties again conferred regarding the 

mechanics of notice and a claims process. The parties’ positions have not changed since the prior 

briefing was completed, with two exceptions. First, in light of the disposition of ViSalus’s 

appeal, Plaintiff proposes a small change to the wording of the notice documents, which is found 

in the attached exhibits 2-4. Plaintiff believes no other changes are necessary. Defendant neither 

agreed with nor opposed these minor proposed wording changes. For its part, ViSalus 

represented that it would not continue to insist that claiming Class Members provide a telephone 

bill in order to substantiate their claims. That is a step in the right direction, but as Plaintiff 

explained in her earlier reply in support of her proposed claims process (Dkt. 419 at 6-7), nothing 

beyond the data necessary to validate a claim should be required from Class Members unless 

ViSalus substantiates a challenge to the member’s claim. The parties otherwise stand on the 

briefs previously field with the Court, and ask the Court to rule on those briefs, subject to the 

modifications laid out above. 

Case 3:15-cv-01857-SI Document 455 Filed 05/09/23 Page 10 of 13
PLAINTIFF’S STATEMENT REGARDING

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 Finally, Plaintiff renews her request that notice costs be shifted to the Defendant. See 

Macarz v. Transworld Sys., Inc., 201 F.R.D. 54, 59 (D. Conn. 2001) (“A number of courts have 

held that where notice is to occur after liability has been determined, the defendant appropriately 

bears the costs.”). Plaintiff has now established liability and defended the jury’s verdict on 

appeal. ViSalus will be required to bear these costs regardless of whether it succeeds in reducing 

the aggregate award, and should claims proceed as requested, it should bear those costs now. 

Respectfully submitted, 

LORI WAKEFIELD, on behalf of themselves and 

a class of others similarly situated,

Dated: May 9, 2023 /s/ J. Aaron Lawson 

EDELSON PC 

Rafey S. Balabanian, Cal. Bar #315962* 

rbalabanian@edelson.com 

J. Aaron Lawson, Cal. Bar #319306* 

alawson@edelson.com 

150 California Street, 18th Floor 

San Francisco, California 94111 

Tel: 415.212.9300 

Fax: 415.373.9435 

Eve-Lynn Rapp Cal. Bar #342892* 

erapp@edelson.com 

Edelson PC 

2101 Pearl Street 

Boulder, Colorado 80302 

Tel: 720.741.0076 

Fax: 720.741.0081 

FORUM LAW GROUP 

Scott F. Kocher, OSB #015088 

811 S.W. Naito Parkway, Suite 420 

Portland, Oregon 97204 

Tel: 503.445.2120 

Fax: 503.445.2120 

DOVEL & LUNER, LLP 

Case 3:15-cv-01857-SI Document 455 Filed 05/09/23 Page 11 of 13
PLAINTIFF’S STATEMENT REGARDING

SCHEDULING ISSUES

11

Simon Franzini, Cal. Bar #287631* 

simon@dovel.com 

Gregory S. Dovel, Cal. Bar #135387* 

greg@dovel.com 

201 Santa Monica Blvd., Suite 600 

Santa Monica, California 90401 

Tel: (310) 656-7066 

Fax: (310) 656-7069 

Case 3:15-cv-01857-SI Document 455 Filed 05/09/23 Page 12 of 13
PLAINTIFF’S STATEMENT REGARDING

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CERTIFICATE OF SERVICE 

I, J. Aaron Lawson, an attorney, certify that on May 9, 2023, 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/ J. Aaron Lawson 

Case 3:15-cv-01857-SI Document 455 Filed 05/09/23 Page 13 of 13