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 all others similarly 

situated, 

 Plaintiff,

 v.

VISALUS, INC.,

a Nevada corporation,

 Defendant.

No. 3:15-cv-01857

Plaintiff’s trial brief

Case 3:15-cv-01857-SI Document 176 Filed 01/16/19 Page 1 of 15
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 176 Filed 01/16/19 Page 2 of 15
Plaintiff’s trial brief i

Table of Contents

I. Introduction. ......................................................................................................... 1

A. Parties. ....................................................................................................... 1

B. Claims........................................................................................................ 1

1. “Artificial or prerecorded voice” claims. ......................................... 1

2. “Do not call” claims. ....................................................................... 2

II. Brief summary of material facts and legal contentions. ........................................ 2

A. “Artificial or prerecorded voice” claims on behalf of Ms. Wakefield 

and the Certified Class. .............................................................................. 2

1. Elements of the “artificial or prerecorded voice” claims. ................. 2

2. Willful and knowing violations of “artificial or prerecorded 

voice” claims................................................................................... 6

3. Damages.......................................................................................... 7

B. “Do not call” claim on behalf of Ms. Wakefield individually. ................... 8

1. Elements of the “do not call” claim. ................................................ 8

2. Willful and knowing violations of the “do not call” claim. .............. 9

3. Damages........................................................................................ 10

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Plaintiff’s trial brief ii

Table of Authorities

Cases

Glob.-Tech Appliances, Inc. v. SEB S.A.,

563 U.S. 754 (2011)..................................................................................................... 7

Grant v. Capital Mgmt. Servs., L.P.,

449 F. Appx. 598 (9th Cir. 2011) ................................................................................. 4

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

23 F.C.C. Rcd. 559 (Jan. 4, 2008) ................................................................................ 5

Roylance v. ALG Real Estate Servs., Inc.,

Case No. 5:14-cv-02445-PSG, 2015 U.S. Dist. LEXIS 44930 (N.D. Cal. Mar. 16, 

2015) ........................................................................................................................... 6

Safeco Ins. Co. of Am. v. Burr,

551 U.S. 47 (2007)....................................................................................................... 7

Sengenberger v. Credit Control Servs., Inc.,

Case No. 1:09-cv-02796, 2010 U.S. Dist. LEXIS 43874 (N.D. Ill. May 5, 2010)......... 7

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

847 F.3d 1037 (9th Cir. 2017)................................................................................... 3, 4

Statutes

47 U.S.C. § 227(b)(1).........................................................................................2, 7, 8, 10

Regulations

47 C.F.R. § 64.1200..................................................................................................... 4, 8

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Plaintiff’s trial brief 1

I. Introduction.

This case is a certified class action. At trial, Plaintiff Lori Wakefield, individually 

and on behalf of all others similarly situated, will prove that Defendant ViSalus, Inc.

repeatedly violated the Telephone Consumer Protection Act (“TCPA”), a federal law that 

prohibits certain telephone solicitation calls.

A. Parties. 

The Plaintiff and class representative, Lori Wakefield, is an individual who lives 

with her husband in Clackamas County, Oregon. 

The Defendant, ViSalus, Inc., is a multi-level marketing company that sells 

weight-loss products and dietary supplements. 

The Certified Class comprises “[a]ll 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.” Dkt. 81 (Class Certification Order) at 6.

B. Claims. 

At trial, Ms. Wakefield will present two claims against ViSalus. 

1. “Artificial or prerecorded voice” claims.

Ms. Wakefield, on behalf of herself and the Certified Class, will prove that 

ViSalus repeatedly violated 47 U.S.C. § 227(b)(1) of the TCPA by making or initiating 

solicitation calls, without prior express consent, using a prerecorded message or artificial 

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Plaintiff’s trial brief 2

voice to residential landlines or cellular telephone lines. Dkt. 36 (First Amended 

Complaint), Count II.

2. “Do not call” claims.

Ms. Wakefield, individually, will also prove that ViSalus violated 47 C.F.R. § 

64.1200(c) of the regulations prescribed under the TCPA by initiating, without prior 

express consent, more than one solicitation call within a 12-month period to her landline 

telephone number that had been registered with the National Do Not Call Registry for at 

least 30 days. Dkt. 36 (First Amended Complaint), Count I. 

II. Brief summary of material facts and legal contentions.

The following is a brief summary of the materials, facts, and legal contentions for 

the “artificial or prerecorded voice” and “do not call” claims.

A. “Artificial or prerecorded voice” claims on behalf of Ms. Wakefield 

and the Certified Class.

1. Elements of the “artificial or prerecorded voice” claims.

The relevant portion of the TCPA provides: 

“It shall be unlawful for any person within the United States ...

(A) to make any call (other than a call ... made with the prior 

express consent of the called party) using ... an artificial or 

prerecorded voice... (iii) to any telephone number assigned to a ... 

cellular telephone service ... 

(B) to initiate any telephone call to any residential telephone line 

using an artificial or prerecorded voice to deliver a message without 

the prior express consent of the called party ....”

47 U.S.C. § 227(b)(1).

Accordingly, to prove that ViSalus violated this provision of the TCPA, at trial 

Ms. Wakefield will present evidence that: 

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Plaintiff’s trial brief 3

(1) ViSalus made solicitation calls within the United States to Ms. Wakefield and 

members of the Certified Class;

(2) such calls used an artificial or prerecorded voice to deliver a message;

(3) such calls were made to residential telephone lines, or telephone numbers 

assigned to a cellular telephone service. 1

At trial, Ms. Wakefield will prove that ViSalus made solicitation calls within the 

United States to Ms. Wakefield, at her residential phone number (503) 829-7628, in April 

2016; and to each member of the Certified Class, between 2014 and 2016.

To determine whether a telephone line or number is a residential line or telephone 

number, the word “residential” has its usual and ordinary meaning. Dkt. 149 (Order 

Regarding Proposed Jury Instructions) at 4. 

Factors that demonstrate whether a telephone line or number is a residential line or 

number include whether the phone number was:

• registered as a residential number or a business number; and 

• publicized or held out to the general public as a business number, even if it was 

registered as a residential number.

Dkt. 149 (Order Regarding Proposed Jury Instructions) at 4. 

 1 As explained below, because “express consent” is an affirmative defense, Ms. 

Wakefield does not need to prove lack of consent to establish that ViSalus violated this 

provision of the TCPA as part of her prima facie case. Van Patten v. Vertical Fitness 

Grp., Ltd. Liab. Co., 847 F.3d 1037, 1044 (9th Cir. 2017) (“Express consent is not an 

element of a plaintiff’s prima facie case but is an affirmative defense for which the 

defendant bears the burden of proof.”).

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Plaintiff’s trial brief 4

The fact that a telephone number is used for some business calls does not 

necessarily make it a business telephone number, so long as it is used primarily as a 

residential number. Dkt. 149 (Order Regarding Proposed Jury Instructions) at 4. 

Express consent is an affirmative defense, not an element of Ms. Wakefield’s 

prima facie case:

• “Express consent is not an element of a plaintiff’s prima facie case but is an 

affirmative defense for which the defendant bears the burden of proof.” Van 

Patten v. Vertical Fitness Grp., Ltd. Liab. Co., 847 F.3d 1037, 1044 (9th Cir. 

2017); 

• “‘[E]xpress consent’ is not an element of a TCPA plaintiff’s prima facie case, 

but rather is an affirmative defense for which the defendant bears the burden of 

proof.” Grant v. Capital Mgmt. Servs., L.P., 449 F. Appx. 598, 600 n.1 (9th 

Cir. 2011);

• “[W]e conclude that the creditor should be responsible for demonstrating that 

the consumer provided prior express consent. ... Should a question arise as to 

whether express consent was provided, the burden will be on the creditor to 

show it obtained the necessary prior express consent.” In the Matter of Rules 

& Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. 

Rcd. 559, 565 (Jan. 4, 2008).

The rules implementing the TCPA, 47 C.F.R. § 64.1200, define “prior express 

consent” as follows:

“The term prior express written consent means an agreement, in writing, 

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Plaintiff’s trial brief 5

bearing the signature of the person called that clearly authorizes the seller 

to deliver or cause to be delivered to the person called advertisements or 

telemarketing messages using an automatic telephone dialing system or an 

artificial or prerecorded voice, and the telephone number to which the 

signatory authorizes such advertisements or telemarketing messages to be 

delivered.

(i) The written agreement shall include a clear and conspicuous 

disclosure informing the person signing that:

(A) By executing the agreement, such person authorizes the 

seller to deliver or cause to be delivered to the signatory 

telemarketing calls using an automatic telephone dialing 

system or an artificial or prerecorded voice; and

(B) The person is not required to sign the agreement (directly 

or indirectly), or agree to enter into such an agreement as a 

condition of purchasing any property, goods, or services.

(ii) The term “signature” shall include an electronic or digital form 

of signature, to the extent that such form of signature is recognized 

as a valid signature under applicable federal law or state contract 

law.”

ViSalus has stipulated that it will not present evidence or argue that it obtained 

express consent to make the violating calls:

“To set the record clear, ViSalus does not claim that Plaintiff’s Count I 

claim is barred in its entirety by her giving ViSalus permission or consent, 

and does not claim that for Count II, Plaintiff’s or the class’s claims are 

barred by them giving ViSalus prior express written consent under 47 

C.F.R. § 64.1200(a)(2)-(3).”

Dkt. 145 (Notice of Withdrawal of Motion to Amend its Answer to add this 

defense) at 2. 2

 2 Based on ViSalus’ representation to Ms. Wakefield and the Court, Ms. 

Wakefield is filing a motion in limine to preclude ViSalus from introducing evidence or 

argument that ViSalus had prior express consent to place calls featuring an artificial or 

prerecorded voice to Ms. Wakefield or any member of the Certified Class.

Case 3:15-cv-01857-SI Document 176 Filed 01/16/19 Page 9 of 15
Plaintiff’s trial brief 6

2. Willful and knowing violations of “artificial or prerecorded 

voice” claims.

In addition to establishing the elements of the “artificial or prerecorded voice”

claims, at trial Ms. Wakefield will also establish that ViSalus’ violations of the “artificial 

or prerecorded voice” claims were knowing or willful. 

To establish that ViSalus’ violations were knowing or willful, Ms. Wakefield must 

establish that ViSalus knew, or was willfully blind to the fact, that it was making a 

telephone solicitation call to a residential or mobile telephone line using an artificial or 

prerecorded voice to play a message, without obtaining prior express consent from the 

called party. Roylance v. ALG Real Estate Servs., Inc., Case No. 5:14-cv-02445-PSG, 

2015 U.S. Dist. LEXIS 44930, at *31 (N.D. Cal. Mar. 16, 2015) (“Although neither the 

TCPA nor the FCC regulations define the terms ‘willfully or knowingly’ . . . courts have 

generally interpreted willfulness to imply only that an action was intentional.”) (quoting

Sengenberger v. Credit Control Servs., Inc., Case No. 1:09-cv-02796, 2010 U.S. Dist. 

LEXIS 43874, at *16 (N.D. Ill. May 5, 2010)); Safeco Ins. Co. of Am. v. Burr, 551 U.S. 

47, 56-58 (2007) (“Where willfulness is a statutory condition of civil liability, we have 

generally taken it to cover not only knowing violations of a standard, but reckless ones as 

well.”); Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011) (“[P]ersons 

who know enough to blind themselves to direct proof of critical facts in effect have actual 

knowledge of those facts.”).

At trial, Ms. Wakefield will prove that ViSalus knew, or was willfully blind to the 

fact, that it was making telephone solicitation calls to residential or mobile telephone 

lines of Ms. Wakefield and the Certified Class using an artificial or prerecorded voice to 

Case 3:15-cv-01857-SI Document 176 Filed 01/16/19 Page 10 of 15
Plaintiff’s trial brief 7

play a message, without obtaining prior express consent from Ms. Wakefield and the 

Certified Class.

3. Damages.

At trial, Ms. Wakefield will prove the number of calls made by ViSalus that 

violated the “artificial or prerecorded voice” provision of the TCPA to Ms. Wakefield

and the members of the Certified Class.

The TCPA provides statutory damages in the amount of $500 per call for initiating 

solicitation calls using a prerecorded message or artificial voice without prior express 

written consent from the recipient. 47 U.S.C. §§ 227(b)(3)(B)-(C).

In addition, the $500 per call may be trebled at the Court’s discretion if the Court 

finds that ViSalus’ conduct was committed willfully or knowingly. 47 U.S.C. § 

227(b)(3)(C); 47 U.S.C. § 227(c)(5)(C).

Because the amount of damages is set by statute, the jury need only determine the 

number of calls and need not determine the actual amount of the judgment. 

After the jury determines the number of calls that ViSalus made that violates this 

provision of the TCPA, the Court can determine the amount of the judgment by (a) 

multiplying the number of violating calls by $500 and (b) increasing the judgment up to 

three times based on finding ViSalus’ conduct willful or knowing. 3

 3 The amount of the statutory damages for each violation of the TCPA under 47 

U.S.C. § 227(b)(3)(B) is irrelevant for the jury because it is not probative of any factual 

issue to be determined by the jury. The statutory damages are fixed by statute and are not 

discretionary. The jury’s role at trial will be to determine the number of calls that 

violated the statute. As a result, Ms. Wakefield is bringing a motion in limine to preclude 

ViSalus from presenting evidence or argument of the amount of statutory damages for 

violating the artificial or prerecorded voice claims.

Case 3:15-cv-01857-SI Document 176 Filed 01/16/19 Page 11 of 15
Plaintiff’s trial brief 8

B. “Do not call” claim on behalf of Ms. Wakefield individually.

1. Elements of the “do not call” claim.

The relevant portion of the TCPA provides: 

“A person who has received more than one telephone call within any 12-

month period by or on behalf of the same entity in violation of the 

regulations prescribed under this subsection may ... bring ... (B) an action 

to ... receive up to $500 in damages for each such violation ....”

47 U.S.C. § 227(c)(5).

The underlying regulations provide:

“(c) No person or entity shall initiate any telephone solicitation to: ... 

(2) A residential telephone subscriber who has registered his or her 

telephone number on the national do-not-call registry of persons who 

do not wish to receive telephone solicitations that is maintained by 

the Federal Government. ... Any person or entity making telephone 

solicitations (or on whose behalf telephone solicitations are made) 

will not be liable for violating this requirement if: ... (ii) It has 

obtained the subscriber’s prior express invitation or permission. 

Such permission must be evidenced by a signed, written agreement 

between the consumer and seller which states that the consumer 

agrees to be contacted by this seller and includes the telephone 

number to which the calls may be placed.”

47 C.F.R. § 64.1200.

Accordingly, to prove that ViSalus violated this provision of the TCPA, Ms. 

Wakefield will present evidence that: 

(1) Ms. Wakefield registered her phone number (503) 829-7628 with the national 

do-not-call-registry for at least 30 days;

(2) ViSalus made, and Ms. Wakefield received, two or more solicitation calls 

within any 12-month period to Ms. Wakefield’s number; and

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Plaintiff’s trial brief 9

(3) Ms. Wakefield’s phone number is a residential telephone number. 4

At trial, Ms. Wakefield will prove that she registered her landline telephone (503) 

829-7628 with the National Do Not Call Registry on February 15, 2008. 

At trial, Ms. Wakefield will prove that ViSalus made at least five solicitation calls 

to Ms. Wakefield at (503) 829-7628 in 2015, when her number was registered on the Do 

Not Call Registry.

At trial, Ms. Wakefield will prove her phone line (503) 829-7628 is a residential 

telephone number. See Section II(A)(1) above.

As described above, express consent is an affirmative defense, not an element of 

Ms. Wakefield’s prima facie case. See Section II(A)(1) above.

2. Willful and knowing violations of the “do not call” claim.

In addition to satisfying the elements necessary to establish the “do not call”

claim, Ms. Wakefield will also establish at trial that ViSalus’ violation of this “do not

call” claim was willful and knowing.

To establish that ViSalus’ violations were willful and knowing, Ms. Wakefield

must establish that ViSalus knew, or was willfully blind to the fact, that it initiated a 

telephone solicitation call to a residential telephone subscriber who had registered her 

telephone number with the National Do Not Call Registry, without obtaining prior 

express consent to do so. See cases cited above. 

 4 As with the “artificial or prerecorded voice” claim, because “express consent” is 

an affirmative defense, Ms. Wakefield need not prove lack of consent to establish that 

ViSalus violated this provision of the TCPA as part of her prima facie case. Van Patten 

v. Vertical Fitness Grp., Ltd. Liab. Co., 847 F.3d 1037, 1044 (9th Cir. 2017) (“Express 

consent is not an element of a plaintiff’s prima facie case but is an affirmative defense for 

which the defendant bears the burden of proof.”).

Case 3:15-cv-01857-SI Document 176 Filed 01/16/19 Page 13 of 15
Plaintiff’s trial brief 10

At trial, Ms. Wakefield will prove that ViSalus knew, or was willfully blind to the 

fact, that it initiated a telephone solicitation call to Ms. Wakefield’s residential telephone 

number that she had registered with the National Do Not Call Registry, without obtaining 

prior express consent to do so.

3. Damages.

The TCPA provides statutory damages up to $500 per call for violating the Do Not 

Call regulations. 47 U.S.C. § 227(c)(5). At trial, Ms. Wakefield will demonstrate that 

the jury should award her the full $500 per call based on the facts set forth above.

The TCPA also provides that the amount determined by the jury may be trebled at 

the Court’s discretion if the Court finds that ViSalus’ conduct was committed willfully or 

knowingly. 47 U.S.C. § 227(c)(5). After the jury returns a verdict, Ms. Wakefield will 

request that the Court treble the amount determined by the jury based on ViSalus’ willful 

and knowing conduct.

Date: January 16, 2019 Respectfully submitted,

By: /s/ Simon Franzini

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

Case 3:15-cv-01857-SI Document 176 Filed 01/16/19 Page 14 of 15
Plaintiff’s trial brief 11

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 176 Filed 01/16/19 Page 15 of 15