Joshua M. Sasaki, P.C., OSB No. 964182 

josh.sasaki@millernash.com

MILLER NASH GRAHAM & DUNN LLP 

3400 U.S. Bancorp Tower, 111 S.W. Fifth Ave 

Portland, OR 97204 

Telephone: 503.224.5858 

Facsimile: 503.224.0155 

Benjamin G. Shatz (pro hac vice) 

bshatz@manatt.com

Christine M. Reilly (pro hac vice) 

creilly@manatt.com

John W. McGuinness (pro hac vice) 

jmcguinness@manatt.com

MANATT, PHELPS & PHILLIPS, LLP 

2049 Century Park East, Suite 1700 

Los Angeles, CA 90067 

Telephone: 310.312.4000 

Facsimile: 310.312.4224 

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. 

No. CV No. 3:15-cv-01857-SI 

DEFENDANT’S OPPOSITION 

TO PLAINTIFF’S MOTION FOR 

ATTORNEYS’ FEES & INCENTIVE 

AWARD 

Request for Oral Argument 

Case 3:15-cv-01857-SI Document 412 Filed 10/22/20 Page 1 of 6
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Defendant’s Opposition to Attorney’s Fees and Incentive Award 

OPPOSITION TO PLAINTIFF’S MOTION FOR 

ATTORNEYS’ FEES & INCENTIVE AWARD 

Defendants oppose Plaintiff’s motion for absurdly large awards of attorneys’ fees of over 

$231 million and an incentive award for Plaintiff of $50,000. 

I. Plaintiff’s request for over $231 million in fees for winning a three-day trial is 

outlandish. 

Plaintiff’s motion for attorneys’ fees seeks a “percentage fee award of 25%” of the 

judgment because that is supposedly the “standard” benchmark for counsel in class actions. 

(Mot. at 1.) But Plaintiff’s motion never does the math to show that what Plaintiff is really 

asking for is 25% of $925,218,000, which equals $231,304,500. Such a request is astounding. 

Plaintiff’s attempt to bury the lede in no way should disguise how imperative it is for this Court 

to enter a more reasonable sum of fees. 

ViSalus does not dispute that this case has resulted in the largest TCPA judgment in 

history. But that is not a function of Plaintiff’s counsels’ purportedly remarkable work. Rather, 

the enormous judgment figure results merely from the mathematical calculation of a large 

number of purported statutory violations (1,850,436) times $500 in statutory damages. 

The results obtained in this case were not exceptional: Plaintiff simply established calls in 

violation of the TCPA, and the only reason the judgment became so astronomical is the 

mechanical application of the statutory award. Plaintiff failed to establish that ViSalus acted 

willfully or knowingly so as to warrant treble damages. The “risks” of this litigation were no 

different than a typical TCPA case, nor was the motion practice or discovery in the case unusual 

from any similar case. Given the importance of class certification in class action cases, 

significant motion practice on that topic is normal. 

As this Court has noted, the goal in awarding attorneys’ fees is to achieve a “reasonable” 

result, and in common fund cases like this, the Court has discretion to use either the percentageof-recovery method or the lodestar method (reasonable hours times reasonable rate). Azar v. 

Blount Int’l, Inc., No. 16-cv-0483-SI, 2019 WL 7372658, *2 (D. Or. Dec. 31, 2019), citing In re 

Case 3:15-cv-01857-SI Document 412 Filed 10/22/20 Page 2 of 6
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Defendant’s Opposition to Attorney’s Fees and Incentive Award 

Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011). Moreover, because 

reasonableness is the goal, a “mechanical or formulaic” calculation that yields an unreasonable 

result can be an abuse of discretion. Id. (citing Fischel v. Equitable Life Assurance Soc’y of the 

U.S., 307 F.3d 997, 1006 (9th Cir. 2002)). 

Plaintiff recognizes that a downward departure is appropriate based on comparing the 

25% benchmark with counsel’s lodestar. (Mot. at p. 7.) Yet, Plaintiff’s motion originally 

included no lodestar figure, prompting the Court to order Plaintiff to file lodestar data. Courts 

typically use the lodestar amount as a “cross-check” on the reasonableness of a percentage 

award. Azar, 2019 WL 7372658, *12. 

Once provided, Plaintiff’s lodestar data here calculates to attorneys’ fees of just under 

$3.5 million. Thus, Plaintiff’s $231 million fees request is 67 times greater than Plaintiff’s own 

lodestar. Given that “there is a strong presumption that the lodestar amount represents a 

reasonable fee” (Fischel, 307 F.3d at 1007), this means that Plaintiff’s percentage recovery of 

$231 million is not just beyond what is prima facie reasonable, but it is 67 times beyond what is 

reasonable. 

Moreover, Plaintiff’s lodestar figure is calculated using hourly rates of up to $1,500 that 

Plaintiff concedes are “higher than the prevailing rates within this District.” (Dkt. 398 at 2; see

Dkt. 400 at p. 5 [using hourly rates of $1,500, $1,200, $1,000, and $750 for partners, and $550 

for associates]; Dkt. 399 at p. 5 [using hourly rates of $1,150, $875, $750, and $725 for partners, 

and $350 to $550 for associates].) Yet the very authority Plaintiff cites makes clear that this 

Court “usually applies the billing rates within the District of Oregon,” which are “far lower” than 

those charged by firms in California and elsewhere. Azar, 2019 WL 7372658, *12. Similarly, 

this Court has noted that it usually only awards $100 per hour for paralegals (ibid.), yet 

Plaintiff’s lodestar uses hourly rates of $250 to $395 for non-lawyer staff. (See Dkt. 399 at p. 5; 

Dkt. 400 at p. 5.) 

Case 3:15-cv-01857-SI Document 412 Filed 10/22/20 Page 3 of 6
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Defendant’s Opposition to Attorney’s Fees and Incentive Award 

Plaintiffs also repeatedly emphasize that this litigation has lasted five years. But that is 

not uncommon. In Azar, this Court found that an award of less than $765,000 was fair, 

reasonable, and adequate compensation for litigation that lasted three years. Azar, 2019 WL 

7372658, *12-13. 

In sum, given the admittedly unprecedent enormous judgment, this case presents a 

situation where a formulaic percentage recovery would yield an absurdly high attorneys’ fees 

figure. Rather than over $230 million in fees, this Court should exercise its discretion to use the 

lodestar analysis rather than a percentage analysis. Moreover, Plaintiff should be awarded a 

figure less than the lodestar sought, given how Plaintiff’s lodestar is inflated by rates far in 

excess of what Courts in this District would ordinarily award. 

II. No incentive award should be granted because such awards violate Supreme Court 

precedent. 

In the 1980s courts began allowing payments to the named plaintiffs in class actions, 

known as “incentive awards.” But just last month, the Court of Appeals for the Eleventh Circuit 

reversed and vacated a district court’s award of a $6,000 “incentive payment” to a TCPA class 

action representative on the basis that Supreme Court precedent prohibits such awards. Johnson 

v. NPAS Solutions, LLC, 975 F.3d 1244, 2020 WL 5553312 (11th Cir. Sept. 17, 2020), citing 

Trustees v. Greenough, 105 U.S. 527 (1882) and Central Railroad & Banking Co. v. Pettus, 113 

U.S. 116 (1885). The Eleventh Circuit majority concluded that the district court violated the 

Supreme Court’s rule from Greenough and Pettus: “A plaintiff suing on behalf of a class can be 

reimbursed for attorneys’ fees and expenses incurred in carrying on the litigation, but he cannot 

be paid a salary or be reimbursed for his personal expenses.” Id. at *9. The court noted that 

incentive awards today pose even more risks than the concerns from the past, promoting 

“litigation by providing a prize to be won.” Id. 

Plaintiff’s request here for an incentive award is essentially payment for her “personal 

services”—“part salary and part bounty” (id. at *10)—precisely what Greenough and Pettus

Case 3:15-cv-01857-SI Document 412 Filed 10/22/20 Page 4 of 6
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Defendant’s Opposition to Attorney’s Fees and Incentive Award 

prohibit. This Court should follow the Eleventh Circuit’s analysis, premised on Supreme Court 

precedent, and decline to make any incentive award. 

III. If any incentive award is awarded, it should be drastically reduced from Plaintiff’s 

$50,000 request. 

Assuming that a discretionary incentive award is allowed and warranted at all, the 

amount sought by Plaintiff—like the amount of attorneys’ fees requested—is grossly excessive 

and should be drastically reduced. Plaintiff seeks $50,000. This amount equals the annual salary 

of the average Oregonian. See Or. Secretary of State, Oregon’s Economy: Wages (“Oregon 

workers earned an annual average of $51,132 in 2017). This large figure is far above the typical 

incentive award. A 2006 study reported the average incentive award per class representative was 

$15,992, the median award was $4,357, and the average in consumer cases (like Plaintiff’s 

TCPA case here) was only about $2,000. See Theodore Eisenberg & Geoffrey Miller, Incentive 

Awards to Class Action Plaintiffs: An Empirical Study, 53 UCLA L. Rev. 1303, 1333-34 (2006). 

Incentive awards are, of course, discretionary, and subject to an analysis of many factors. 

See In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 463 (9th Cir. 2000). Here, there was zero 

risk (financial or otherwise) to Plaintiff in commencing suit and there was no risk of notoriety or 

personal difficulties that interfered with her life. The time and effort she expended was not 

extraordinary, but completely typical for such litigation. Plaintiff attempts to downplay how 

significant a $50,000 award is by contrasting it with the $925 million overall judgment. (Mot. at 

14.) But that is a false and meaningless comparison, especially in light of the astronomical 

judgment. The more relevant question to ask is whether Plaintiff deserves an entire average 

yearly salary for her rather pedestrian participation in a short trial. The answer is no. Any 

“incentive award” should be within the usual range of a couple thousand dollars at most. 

In Bell v. Consumer Cellular, Inc., No. 15-cv-941-SI, 2017 WL 2672073 (D. Or. June 21, 

2017), cited by Plaintiff, this Court found that the plaintiff actively participated in the litigation: 

“Plaintiff contributed considerable time and effort and personal resources” into the case and she 

Case 3:15-cv-01857-SI Document 412 Filed 10/22/20 Page 5 of 6
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Defendant’s Opposition to Attorney’s Fees and Incentive Award 

“traveled a considerable distance at her own expense.” As a result, this Court allowed an 

incentive award of $2,500. That sounds about right here too. 

Respectfully submitted, 

Dated: October 22, 2020 MANATT, PHELPS & PHILLIPS, LLP 

By s/Benjamin G. Shatz 

Christine M. Reilly (pro hac vice) 

creilly@manatt.com

Benjamin G. Shatz (pro hac vice) 

bshatz@manatt.com

John W. McGuinness (pro hac vice) 

jmcguinness@manatt.com

MANATT, PHELPS & PHILLIPS, LLP 

2049 Century Park East, Suite 1700 

Los Angeles, CA 90067 

Tel: 310.312.4000 Fax: 310.312.4224 

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 

Tel: 503.224.5858 Fax: 503.224.0155 

Attorneys for Defendant ViSalus, Inc. 

Case 3:15-cv-01857-SI Document 412 Filed 10/22/20 Page 6 of 6