PLAINTIFF’S RESPONSE IN OPPOSITION

TO DEFENDANT’S MOTION TO STAY

Scott F. Kocher, OSB #015088

scott@forumlawgroup.com

FORUM LAW GROUP LLC

811 SW Naito Parkway, Suite 420

Portland, Oregon 97204

Tel: 503.445.2102

Fax: 503.445.2120

Rafey S. Balabanian (Admitted pro hac vice)

rbalabanian@edelson.com 

Benjamin H. Richman (Admitted pro hac vice)

brichman@edelson.com 

Eve-Lynn Rapp (Admitted pro hac vice)

erapp@edelson.com 

EDELSON PC

350 North LaSalle Street, 13th Floor

Chicago, Illinois 60654

Tel: 312.589.6370

Fax: 312.589.6378

Attorneys for Plaintiff and the putative class

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

 

LORI WAKEFIELD, individually and on 

behalf of all others similarly situated, 

Plaintiff, 

 

v. 

VISALUS, INC., a Nevada corporation, 

 Defendant. 

Case No.: 3:15-cv-01857-BR 

PLAINTIFF’S RESPONSE IN 

OPPOSITION TO DEFENDANT’S 

MOTION TO STAY 
PLAINTIFF’S RESPONSE IN OPPOSITION

TO DEFENDANT’S MOTION TO STAY

i 

TABLE OF CONTENTS 

INTRODUCTION .........................................................................................................................1 

ARGUMENT ..................................................................................................................................3 

I. The Legal Standard for Granting a Stay Places the Burden on ViSalus ......................3 

II. Awaiting the Consideration of Spokeo or Campbell-Ewald Will Not 

 Further the Orderly Course of Justice .............................................................................4 

A. The decision in Spokeo is unlikely to affect any of Plaintiff’s claims ................4 

B. The outcome in Campbell-Ewald is inapplicable to this case and 

 likewise does not justify a stay ..............................................................................7 

III. The Balance of Harms Councils Against a Stay ............................................................10 

A. ViSalus has not and cannot establish that any hardship 

would result to it in the absence of a stay ..........................................................10 

B. Granting a stay would result in significant harm to Plaintiff ..........................13 

IV. The Extra-jurisdictional Orders Cited by ViSalus in Support of a Stay 

 are Not a Basis to Ignore Application of the Law in this Circuit, 

 Nor are They Persuasive .................................................................................................14 

CONCLUSION ............................................................................................................................18 
PLAINTIFF’S RESPONSE IN OPPOSITION

TO DEFENDANT’S MOTION TO STAY

ii

TABLE OF AUTHORITIES

United States Supreme Court:

ASARCO Inc. v. Kadish, 490 U.S. 605 (1989) ...............................................................................11 

Clinton v. Jones, 520 U.S. 681 (1997) ......................................................................................... 3-4 

Genesis Healthcare Corp. v. Symczyk, 133 S.Ct. 1523 (2013) ........................................................8 

Gomez v. Campbell-Ewald, 135 S.Ct. 2311 (2015) ............................................................... passim 

Landis v. N. Am. Co., 299 U.S. 248 (1936) .....................................................................................3 

Mims v. Arrow Financial Serv., LLC, 132 S.Ct. 740 (Jan 18. 2012) .........................................6, 11 

Spokeo, Inc. v. Robins, 1235 S.Ct. 1892 (2015) .................................................................... passim

Spokeo, Inc. v. Robins, No. 13-1339, 2014 WL 1802228 (U.S. May 1, 2014) ...............................4 

United States Circuit Court:

Boyle v. Int’l Bhd. of Teamsters Local 863 Welfare Fund, 

 579 Fed. App’x 72 (3d Cir. 2014) ........................................................................................9 

Chapman v. First Index, Inc., 796 F.3d 783 (7th Cir. 2011) ...............................................8, 15, 17 

CMAX, Inc. v. , 10, 300 F.2d 265 (9th Cir. 1962) .............................................................. 3-4, 7, 10 

Diaz v. First Am. Home Buyers Protec. Corp., 732 F.3d 948 (9th Cir. 2013) ..........................9, 15 

Edwards v. First Am. Corp., 610 F.3d 514 (9th Cir. 2010) ...........................................................15 

Family Health Chiropractic, Inc., v. MD On-Line Solutions, Inc., 

 No. 15-3508 (6th Cir.) .......................................................................................................17 

Gates v. Towery, 430 F.3d 429 (7th Cir. 2005) ...............................................................................9 

GCB Commun., Inc. v. U.S. S. Commun., Inc., 650 F.3d 1257 (9th Cir. 2011) ...............................9 

Gissendaner v. G. Dep’t. of Corr., 779 F.3d 1275 (11th Cir. 2015) ..............................................15 

Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014) ......................................................15 

Hrivnak v. NCO Portfolio Mgmt., Inc., 719 F.3d 564 (6th Cir. 2013) ............................................9 
PLAINTIFF’S RESPONSE IN OPPOSITION

TO DEFENDANT’S MOTION TO STAY

iii

Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857 (9th Cir. 1979) ...........................................3 

Lockyer v. Mirant Corp., 398 F.3d 1098 (9th Cir. 2005) ....................................................3, 10, 14 

McClellan v. Young, 421 F.2d 690 (6th Cir. 1970) ........................................................................13 

Payne v. Progressive Fin. Servs., Inc., 748 F.3d 605 (5th Cir. 2014) .............................................9 

Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979 (9th Cir. 2015) ..................................12 

Robins v. Spokeo, Inc., 742 F.3d 409 (9th Cir. 2014) ............................................................ 5-6, 15 

Simmons v. United Mortg. And Loan Inv., LLC, 634 F.3d 754 (4th Cir. 2011) ..............................9 

Yokoyama v. Midland Nat. Life Ins. Co., 594 F.3d 1087 (9th Cir. 2010) ......................................12 

Yong v. I.N.S., 208 F.3d 1116 (9th Cir. 2000) ...............................................................................15 

Zinni v. ER Solutions, Inc., 692 F.3d 1162 (11th Cir. 2012) ...........................................................9 

United States District Court:

Bais Yaakov of Spring Valley v. Graduation Source, LLC, 

 No. 14-CV-3232, 2015 WL 8784250 (S.D.N.Y. Dec. 14, 2015) ............................8, 11, 17 

Birchmeier v. Caribbean Cruise Line, Inc., No. 12-cv-04069 (N.D. Ill.) .....................................17 

Boise v. ACE USA, Inc., No. 15-cv-21264, 2015 WL 4077433 (S.D. Fla. July 6, 2015) ..............16 

Booth v. Appstack, Inc., 

 No. C13-1533JLR, 2015 WL 1466247 (W.D. Wash. Mar. 30, 2015) ...............................13 

Boswell v. Panera Bread Co., 

 No. 4:14-CV-01833, 2015 WL 6445396 (E.D. Mo. Oct. 23, 2015) ........................8, 11, 17 

Cedano v. Thrifty Payless, Inc., 

 No. CV-10-237-HZ, 2011 WL 8609402 (D. Or. May 9, 2011) ..........................................4 

Coniglio v. Radian Group, Inc. et al, No. 8:15-cv-02406 (M.D. Fla.) ....................................15, 17 

Del Vecchio v. Amazon.com, 

 No. 11-cv-0366, 2011 WL 1585623 (W.D. Wash. Apr. 27, 2011) ...................................14 

Dennis v. Trans Union LLC, No. 14-2865 (E.D. Pa.) ....................................................................17 
PLAINTIFF’S RESPONSE IN OPPOSITION

TO DEFENDANT’S MOTION TO STAY

iv

Doe v. Selection.com, 

 No. 15-CV-02338, 2015 WL 5853700 (N.D. Cal. Oct. 8, 2015) ..................... 10-11, 16-17 

Dreher v. Experian Info. Solutions, Inc., No. 11-CV-00624 (E.D. Va.) .......................................17 

Duchene v. Westlake Servs., LLC, 

 No. 2:13-cv-01577, 2015 WL 5947669 (W.D. Pa. Oct. 13, 2015) ....................................16 

Eric B. Fromer Chiropractic, Inc. v. New York Life Ins. & Annuity Corp., 

 No. CV 15-04767, 2015 WL 6579779 (C.D. Cal. Oct. 19, 2015) .....................................16 

Hillson v. Kelly Servs., Inc., 

 No. 2:15-cv-10803, 2015 WL 4488493 (E.D. Mich. July 15, 2015) .................................16 

In re Galena Biopharma, Inc. Derivative Litig., 83 F. Supp. 3d 1033 (D. Or. 2015) ......... 3, 13-14 

Kafatos v. Uber Technologies, Inc., No. 15-cv-03727 (N.D. Cal.) ...............................................17 

Keim v. ADF MidAtlantic, LLC, No. 12-cv-80577 (S.D. Fla.) ......................................................17 

Kolinek v. Walgreen Co., No. 13 C 4806, 2015 WL 7450759 (N.D. Ill. Nov. 23, 2015) .........6, 17 

Larson v. Trans Union, LLC, No. 12-cv-05726 (N.D. Cal.) ..........................................................16 

Lathrop v. Uber Technologies, Inc., No. 14-cv-05678 (N.D. Cal.) ...............................................17 

LG Elecs., Inc. v. Eastman Kodak Co., 

 No. 09-CV-0344H, 2009 WL 1468703 (S.D. Cal. May 26, 2009) .............................. 13-14 

Lopez v. Miami-Dade County, 

 No. 15-cv-22943, 2015 WL 7202905 (S.D. Fla. Nov. 6, 2015) .................................. 16-17 

Manuel v. Wells Fargo Bank, No. 3:14-cv-00238 (E.D. Va.) .......................................................17 

Mays v. Grand Daddy’s, LLC, 

 No. 14-cv-461, 2015 WL 75067 (W.D. Wis. Jan. 6, 2015) ........................................... 9-10 

McCaskill v. Navient Solutions, Inc., No. 15-cv-01559 (M.D. Fla. Dec. 2, 2015) ........................17 

Meyer v. Bebe Stores, No. 14-cv-00267, 2015 WL 431148 (N.D. Cal. Feb. 2, 2015) ....................7 

Milbourne v. JRK Residential Am., LLC, 

 No. 12-cv-861, 2014 WL 1369378 (E.D. Va. Apr. 7, 2014) .............................................10 

Montez. v. Chase Home Fin. LLC, 

 No. 11-cv-530, 2011 WL 2729445 (S.D. Cal. July 13, 2011) .....................................10, 14 
PLAINTIFF’S RESPONSE IN OPPOSITION

TO DEFENDANT’S MOTION TO STAY

v 

Peters v. Credit Prot. Ass'n LP, 

 No. 2:13-CV-0767, 2015 WL 5216709 (S.D. Ohio Sept. 8, 2015) ........................... passim

Provo v. Rady Children’s Hospital—San Diego, 

 No. 15-cv-0081, 2015 WL 6144029 (S.D. Cal. July 29, 2015) .........................................17 

Ricardi v. Ed Ideas, Inc., No. 15-cv- 80488 (S.D. Fla.) ................................................................17 

Salvatore v. Microbilt Corp., 

 No. 4:14-cv-1848, 2015 WL 5008856 (M.D. Pa. Aug. 20, 2015) .....................................16 

Schartel v. OneSource Technology, LLC, 

 No. 1:15-cv-1434, 2015 WL 7430056 (N.D. Ohio Nov. 17, 2015) ...................................16 

Seirus Innovative Accessories, Inc. v. Cabela’s Inc., 

 No. 09-CV-102-H, 2011 WL 3268080 (S.D. Cal. July 29, 2011) ................................... 5-6 

Siding & Insulation Co. v. Beachwood Hair Clinic, Inc., 

 No. 1:11-CV-01074, 2011 WL 4005396 (N.D. Ohio Sept. 8, 2011) .................................12 

Smith v. Microsoft, 

 No. 11-cv-1958, 2012 WL 2975712 (S.D. Cal. July 20, 2015) ...........................................6 

Smith v. Progressive Fin. Services, Inc., 

 No. 6:12-CV-1704, 2013 WL 3995004 (D. Or. Aug. 1, 2013) ...........................................9 

Speer v. Whole Food Mkt. Grp., Inc., 

 No. 14-cv-3035, 2015 WL 2061665 (M.D. Fla. Apr. 29, 2015) ..................................15, 17 

Starbucks Corp. v. Lundberg, 

 No. 2-cv-948, 2004 WL 2554578 (D. Or. Nov. 10, 2004) ................................................15 

St. Louis Heart Ctr., Inc. v. Athenahealth, Inc., 

 No. 4:15-cv-01215, 2015 WL 6777873 (E.D. Mo. Nov. 4, 2015) ....................................16 

Stone v. Sterling Infosystems, Inc., 

 No. 2:15-CV-00711, 2015 WL 4602968 (E.D. Cal. July 29, 2015) ..................................17 

Tel. Science Corp. v. Hilton Grand Vacations Co., LLC, 

 No. 6:15-cv-969-Orl-41, 2015 WL 7444409 (M.D. Fla. Nov. 20, 2015) ..........................16 
PLAINTIFF’S RESPONSE IN OPPOSITION

TO DEFENDANT’S MOTION TO STAY

vi 

Thompson ex rel. Thorp Family Charitable Remainder Unitrust v. Federico, 

 324 F. Supp. 2d 1152, 1172 (D. Or. 2004) ..........................................................................3 

U.S. v. Miljus, No. CV 06-1832, 2007 WL 4976368 (D. Or. July 27, 2007) ................................10 

U.S. v. Miljus, No. 06-1832, 2007 WL 4287608 (D. Or. Dec. 3, 2007) ........................................10 

Versa Corp. v. Ag-Bag Int’l. Ltd., 

 No. cv-01-544, 2001 WL 34046241 (D. Or. Sept. 14, 2001) ............................................12 

Wachner v. Aramark Educ. Services, Inc., 

 No. CV 02-528-BR, 2004 WL 1354274 (D. Or. June 15, 2004) ................................. 12-13 

Williams v. Elephant Ins. Co., 

 No. 1:15-CV-00119, 2015 WL 33631691 (E.D. Va. May 27, 2015) ................................16 

Wolf v. Lyft, Inc., 

 No. C 15-01441, 2015 WL 4455965 (N.D. Cal. July 20, 2015) ........................................16 

Woods v. Caremark PHC, L.L.C., 

 No. 15-cv-00535, 2015 WL 6742124 (W.D. Mo. Nov. 2, 2015) ......................................15 

Yaakov v. Varitronics, LLC, 

 No. 14-5008, 2015 WL 5092501 (D. Minn. Aug. 28, 2015) .............................................16 

State Court:

Froeber v. Liberty Mut. Ins. Co., 222 Or. App. 266 (2008) ..........................................................11 

Kellas v. Dept. of Corrections, 341 Or. 471 (Or. 2006) ................................................................11 

Shea v. Chicago Pneumatic Tool Co., 164 Or. App. 198 (1999) ...................................................12 

Statutes & Rules 

15 U.S.C. 1681 ....................................................................................................................... passim 

47 U.S.C. § 227 ...................................................................................................................... passim

105 Stat. 2394 ..................................................................................................................................6 

District of Oregon Local Rule 7 .......................................................................................................3 

Fed. R. Civ. P. 68 .................................................................................................................7, 10, 15 

U.S. Const. art. III, § 2 .............................................................................................................................passim
PLAINTIFF’S RESPONSE IN OPPOSITION

TO DEFENDANT’S MOTION TO STAY

vii 

Miscellaneous: 

Spokeo Oral Argument Before the U.S. Supreme Court, 

 The National Law Review (Nov. 11, 2015) (http://www.natlawreview.com/ 

article/spokeo-oral-argument-us-supreme-court) ................................................................5 
PLAINTIFF’S RESPONSE IN OPPOSITION

TO DEFENDANT’S MOTION TO STAY

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INTRODUCTION 

In this case, Plaintiff Lori Wakefield alleges that Defendant ViSalus, Inc. (“ViSalus”) 

violated the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (the “TCPA”) by 

placing thousands of unsolicited robocalls to consumers in an effort to sell its weight-loss 

products, as well as to recruit them to join its sales and marketing efforts. As detailed in 

Wakefield’s Complaint, ViSalus’s telemarketing calls are particularly invasive, as many of the 

individuals it calls have placed their numbers on the National Do Not Call Registry (the “DNC 

Registry”) specifically so they are not contacted in this manner or harassed by companies like 

Defendant. 

Defendant now seeks to stay this case—and Plaintiff’s efforts to make these intrusive 

calls stop—pending the resolution of Spokeo, Inc. v. Robins, 1235 S.Ct. 1892 (2015) and Gomez 

v. Campbell-Ewald, 135 S.Ct. 2311 (2015), two cases that were recently argued before the 

Supreme Court. According to ViSalus, the impending decisions in these cases will “directly 

bear” on Plaintiff’s TCPA claims, and, if ruled on in its favor, entirely dispose of her case. 

ViSalus is wrong and it has failed to demonstrate how any of the factors that must be considered 

warrant a stay. 

With regard to the first factor, a stay would not serve the interests of justice as neither a 

decision in Spokeo nor Campbell-Ewald will have a determinative effect on this case. As to 

Spokeo, there exists a significant possibility that the Supreme Court affirms the Ninth Circuit’s 

decision and confirms that the violation of a statutory right alone is a sufficient injury to confer 

Article III standing. But even if the Court reverses and adopts Spokeo’s arguments—which are 

based on the Fair Credit Reporting Act, 15 U.S.C. § 1681 (“FCRA”) and not presently at issue 

here—Plaintiff still wouldn’t be barred from moving forward given the concrete privacy injuries 
PLAINTIFF’S RESPONSE IN OPPOSITION

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(in addition to the statutory violations) alleged here. Campbell-Ewald—which concerns whether 

an offer of complete relief moots a plaintiff’s claims—is even less applicable. ViSalus hasn’t 

made an offer of any kind to Wakefield—let alone one that provides “complete relief”—so the 

idea that the Supreme Court’s ruling will “provide ViSalus with guidance” is far too speculative 

to warrant the “extraordinary” relief it now seeks. 

Next, ViSalus has similarly failed to demonstrate that the second and third factors to be 

considered—which balance the hardship that may result from granting a stay, with that which 

might result from requiring the case to go forward—justify a stay either. Putting aside the 

significant possibility that the Supreme Court’s rulings will not favor Defendant, the Ninth 

Circuit has made clear that merely being required to defend against a lawsuit is not sufficient 

hardship to warrant a stay. ViSalus’s argument is further weakened by the fact that a forum will 

inevitably exist in which Plaintiff can press her claims regardless of the outcome of Spokeo, and 

given that Defendant has already answered, the efforts spent by the Parties engaging in discovery 

simply will not be “unnecessarily” expended. By contrast, Plaintiff would suffer substantial 

prejudice and harm in the face of a stay, as witness memories fade with the passage of time and 

crucial evidence held by unidentified third parties could be destroyed if not preserved. Thus, the 

second and third factors to be considered do not merit a stay either. 

Finally, ViSalus references a handful of non-binding cases in which a stay has been 

granted. These authorities are no more compelling. Primarily, ViSalus neglects that this Court 

has “no authority” to await a decision from the Supreme Court where the Ninth Circuit has 

already decided the issue. It also conveniently fails to mention that at least an equal number of 

cases—which are far more on point and persuasive—have ruled the other way. 
PLAINTIFF’S RESPONSE IN OPPOSITION

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For these reasons, and as explained below, the Court should deny Defendant’s Motion.1 

ARGUMENT 

I. The Legal Standard for Granting a Stay Places the Burden on ViSalus. 

Federal courts possess the inherent power to stay proceedings. See Leyva v. Certified 

Grocers of Cal., Ltd., 593 F.2d 857, 863 (9th Cir. 1979) (citing Landis v. N. Am. Co., 299 U.S. 

248, 255 (1936)). A stay, however, is considered an extraordinary remedy and should only be 

permitted in “rare circumstances.” In re Galena Biopharma, Inc. Derivative Litig., 83 F. Supp. 

3d 1033, 1042 (D. Or. 2015) (quoting Lockyer v. Mirant Corp., 398 F.3d 1098, 1112 (9th Cir. 

2005)). Courts in this Circuit consider the three factors in CMAX, Inc. v. Hall in deciding 

whether to grant a stay: (1) the possible damage that may result from granting a stay; (2) the 

hardship or inequity which a party may suffer in being required to go forward; and (3) the 

orderly course of justice measured in terms of simplifying or complicating issues, proof, and 

questions of law that could result from a stay. 300 F.2d 265, 268-69 (9th Cir. 1962). It is 

ViSalus’s burden to demonstrate that such relief is warranted. See Clinton v. Jones, 520 U.S. 

 

1

 In its Motion, Defendant certifies, pursuant to LR 7-1, that it “made a good faith effort to 

confer” with Plaintiff about this motion “but was unable to resolve the matter.” (Mot. at 1.) 

Plaintiff does not agree. Specifically, Defendant’s counsel emailed for the first time over a 

holiday weekend (specifically, on December 28, 2015), citing a single case and asking if Plaintiff 

would stipulate to a stay pending the decisions in Campbell-Ewald and Spokeo, claiming that the 

rulings in those cases may be “dispositive” of Plaintiff’s claims. Plaintiff’s counsel responded the 

next day, explaining that they did not understand why Defendant believed either CampbellEwald or Spokeo would be “dispositive” of the claims at issue, but that they would “be happy to 

talk more about it.” In response, Defendant merely referenced the same opinion it had previously 

cited, and within hours after Plaintiff’s counsel indicated their concern that the Parties might be 

talking past each other, filed the instant Motion. As such, Plaintiff does not believe that 

Defendant made “a good faith effort through personal or telephone conferences to resolve the 

dispute” or “discuss each claim, defense, or issue that is the subject of the [ ] motion,” as was 

required. See LR7-1(a)(1)(A),(B) (emphasis added). Denial of the Motion is warranted on this 

ground alone. See LR 7-1(a)(3) (“The Court may deny any motion that fails to meet this 

certification requirement.”); Thompson ex rel. Thorp Family Charitable Remainder Unitrust v. 

Federico, 324 F. Supp. 2d 1152, 1172 (D. Or. 2004) (denying motion for failure to comply with 

Local Rule 7’s meet and confer provision). 
PLAINTIFF’S RESPONSE IN OPPOSITION

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4 

681, 708 (1997). ViSalus comes nowhere close to making the requisite showing here. 

II. Awaiting the Consideration of Spokeo or Campbell-Ewald Will Not Further the 

Orderly Course of Justice. 

In support of its Motion, ViSalus relies primarily on the third Hall factor—the orderly 

course of justice—which is largely a “question of judicial economy.” Cedano v. Thrifty Payless, 

Inc., No. CV-10-237-HZ, 2011 WL 8609402, at *4 (D. Or. May 9, 2011). Specifically, ViSalus 

contends that a stay is justified because a decision favoring its position in either Spokeo or 

Campbell-Ewald would purportedly “eliminate [all] Plaintiff’s claims.” (Mot. at 2.) That 

argument is just wrong. For one, it is unlikely that the Supreme Court’s decision in Spokeo—a 

case asserting violations under FCRA and where plaintiff suffered a far less concrete harm—will 

have any impact on Plaintiff’s TCPA claims. Campbell-Ewald is similarly unlikely to have any 

effect, as that case addresses the effect of offers of complete relief, and as ViSalus admits, it has 

not offered any type of relief (complete or otherwise) here. Thus, the judicial economy factor 

councils strongly against a stay. 

A. The decision in Spokeo is unlikely to affect any of Plaintiff’s claims. 

ViSalus first argues that Spokeo could “apply directly to dispose” of Plaintiff’s and the 

putative class members’ standing to proceed in this action because, as in Spokeo, Plaintiff only 

alleges a “bare violation” of a statutory provision under the TCPA. (Mot. at 4.) This assertion is 

fundamentally flawed. 

Foremost, it is clear from the briefing and oral argument that the broad question framed 

by the petition in Spokeo (and suggested by ViSalus)2 is likely to be limited to the wording of 

FCRA, a statue that is not at issue. To be sure, during oral argument a number of the Justices 

 

2

 Whether Congress may confer Article III standing to a plaintiff who suffers no concrete 

harm, and thereby, authorize a private right of action based on the violation of a federal statute. 

Spokeo, Inc. v. Robins, No. 13-1339, 2014 WL 1802228, at *1 (U.S. May 1, 2014). 
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questioned Spokeo’s counsel why, apart from the statutory violation, the injury alleged 

(dissemination of false information about a person in their credit report) is not a judicially 

cognizable injury, and the remaining justices focused on the wording of the statute itself. See Tr. 

of Oral Arg., Spokeo, Inc. v. Robins, a copy of which is attached hereto as Exhibit 1 at 6:2-11 

(“I’ll just say, seems like a concrete injury to me.”); 11:13-23 (“Don’t we owe [Congress] a little 

bit of respect that they’ve actually identified a real-world harm that’s out there?”); 19:5-20:3, 

22:1-14 (“So in fact, Congress has not identified misinformation as a suable harm. That’s not 

what this statute does.”); 24:1-14 (“But the person who has been inaccurately represented can 

come in and say he’s suffered exactly the concrete injury that this statute is designed to protect 

against.”). 

The Justices’ questions strongly suggest that the case will not turn on whether the Ninth 

Circuit is right or wrong that “the violation of a statutory right” is “a sufficient injury in fact to 

confer standing.” See Robins v. Spokeo, Inc., 742 F.3d 409, 412 (9th Cir. 2014). The National 

Law Review agrees, and made a similar observation: 

Although the issue that was certified for appeal was whether a statutory violation 

alone is sufficient to confer Article III standing, it appears unlikely that a ruling 

will address this directly, and more likely that the decision will focus on whether 

Robins suffered actual harm as a result of Spokeo’s alleged publication of false 

information about him. 

Spokeo Oral Argument Before the U.S. Supreme Court, The National Law Review (Nov. 11, 

2015) (http://www.natlawreview.com/article/spokeo-oral-argument-us-supreme-court) (last 

accessed January 19, 2015). 

Defendant’s reliance on the petition for certiorari, rather than the actual arguments 

advanced by the litigants at the merits stage, is thus unavailing, and—as many other cases have 

recognized—insufficient to justify the relief sought. See, e.g., Seirus Innovative Accessories, Inc. 
PLAINTIFF’S RESPONSE IN OPPOSITION

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v. Cabela’s Inc., No. 09-CV-102-H, 2011 WL 3268080, at *2 (S.D. Cal. July 29, 2011) (denying 

stay pending decision in other circuit because “there is no guarantee that the precise issue will be 

addressed” by another court); see also, e.g., Kolinek v. Walgreen Co., No. 13 C 4806, 2015 WL 

7450759, at *5 (N.D. Ill. Nov. 23, 2015) (approving settlement over Spokeo-related objection 

because the case was “unaffected by the Supreme Court’s decision to address whether an 

individual who has not alleged any physical or economic harm has standing to sue for statutory 

damages under the [FCRA]”). 

Even if the Court agrees that Spokeo could apply in this case, the harm suffered here 

would still be sufficient to confer Article III standing as the injury suffered by Plaintiff and the 

putative class members is far more concrete.3 That is, Plaintiff Wakefield alleges that she was 

concretely harmed by the invasion of privacy that resulted from Defendant’s intrusive, 

unauthorized, and harassing telemarketing calls. To be sure, Congress has specifically 

recognized such “unrestricted telemarketing” as an “intrusive invasion of privacy,” see Mims v. 

Arrow Financial Serv., LLC, 132 S. Ct. 740, 745 (Jan 18. 2012) (internal citations omitted) 

(quoting 105 Stat. 2394, note following 47 U.S.C. § 277), and courts around the country—and, in 

particular, the Ninth Circuit—have likewise found the type of injury that results from these calls 

to be sufficiently concrete. See Robins, 742 F.3d at 412; Smith v. Microsoft, No. 11-cv-1958, 

2012 WL 2975712 (S.D. Cal. July 20, 2015) (finding that the plaintiff had established a 

particularized injury in satisfaction of Article III based on the invasion of his privacy even absent 

 

3

 Curiously, Defendant asserts that “Plaintiff and the putative classes seek statutory 

damages only” (Mot. at 2), but that is incorrect. To the contrary, the Complaint specifically 

alleges that “members of the Classes suffered actual harm, including the aggravation and 

nuisance that necessarily accompanies the receipt of unsolicited phone calls and the monies paid 

to their telephone carriers for the receipt of such calls.” (Dkt. 1, ¶ 5 (emphasis added); see also 

id. ¶ 44 (alleging that “the members of the Do Not Call Class suffered actual damages”); id. ¶ 50 

(same)). Thus, unlike in Spokeo, where the plaintiff and the class had simply been victims of 

defendant’s alleged statutory violations, many of the class members here are out real money. 
PLAINTIFF’S RESPONSE IN OPPOSITION

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7 

economic harm); Meyer v. Bebe Stores, No. 14-cv-00267, 2015 WL 431148 (N.D. Cal. Feb. 2, 

2015) (same).

Thus, in order for the outcome in Spokeo to affect this Court’s jurisdiction, the Supreme 

Court would need to go well beyond the facts and issues litigated in Spokeo and radically alter 

the law. Given how unlikely those scenarios are, the “orderly course of justice” factor weighs 

strongly against the grant of a stay here. 

B. The outcome in Campbell-Ewald is inapplicable to this case and likewise does 

not justify a stay. 

ViSalus also seeks a stay pending the Supreme Court’s decision in Campbell-Ewald, 

again contending that a favorable decision in this case could “dispose of this case.” (Mot. at 3, 

6.) Defendant’s argument is even worse off here. The question presented in Campbell-Ewald is

whether an offer of complete relief moots the plaintiff’s claim—a maneuver often called a “pickoff.” But in this case, ViSalus hasn’t made any offer of relief. In other words, as it stands right 

now, the decision in Campbell-Ewald will have absolutely no effect on this case whatsoever. 

Therefore, a stay based on Campbell-Ewald could not possibly “simplify[] issues, proof, and 

questions of law” or promote the “orderly course of justice,” Hall, 300 F.2d at 268, as Defendant 

is required to demonstrate. 

Hoping to get around the fact that its reliance on Campbell-Ewald is entirely misplaced, 

ViSalus assures that a stay is warranted because “if the Court [ ] rules in [its] favor, ViSalus 

intends to make a Rule 68 offer of judgment . . . thereby mooting her claims.” (Mot. at 6 

(emphasis added).) But such speculation is not sufficient. To be sure, ViSalus has failed to cite 

even a single case where a stay has been granted in such circumstance, and courts have 

consistently held that even a partial offer of judgment (i.e. one for some relief) is too attenuated 

to warrant a stay. See, e.g., Peters v. Credit Prot. Ass'n LP, No. 2:13-CV-0767, 2015 WL 
PLAINTIFF’S RESPONSE IN OPPOSITION

TO DEFENDANT’S MOTION TO STAY

8 

5216709, at *9 (S.D. Ohio Sept. 8, 2015) (denying motion to stay upon finding that the decision 

in Campbell-Ewald will not be controlling in the case at bar because the defendant did not tender 

an offer of complete relief); Bais Yaakov of Spring Valley v. Graduation Source, LLC, No. 14-

CV-3232, 2015 WL 8784250, at *3 (S.D.N.Y. Dec. 14, 2015) (“In light of the difference 

between Defendants’ offer of judgment and the damages sought by Plaintiff, even if the Supreme 

Court holds that a complete offer of relief moots a TCPA case, this Court could not make such a 

finding based on the presently incomplete offer of judgment made by [d]efendants.”); Boswell v. 

Panera Bread Co., No. 4:14-CV-01833, 2015 WL 6445396, at *9 (E.D. Mo. Oct. 23, 2015) 

(holding that Campbell-Ewald “would not alter this Court's jurisdiction because . . . Panera has 

not offered [p]laintiffs complete relief on their individual claims.”). 

ViSalus’s argument is also severely flawed from a practical standpoint. That is, accepting 

it would encourage a practice in which defendants argue that they may pursue a potential course 

of action based on any number of potential decisions a higher court may issue,4 at some 

unknown time in the future. If that were permitted, nothing would ever get done in litigation. 

More problematic, even if the Supreme Court did rule in favor of mooting a putative class 

representative’s claims, there would be no way to stop ViSalus from simply deciding that it does 

not want to tender a full offer in order to resolve Plaintiff’s claims. That kind of uncertainty 

cannot justify the extraordinary remedy of a stay. 

Finally, it is not clear that Campbell-Ewald would apply to this case even if Defendant 

had made the strategic decision to make an offer to Wakefield prior to requesting that this matter 

be stayed. That is because the Campbell-Ewald decision will only affect cases where an offer of 

 

4

 It is far from certain that the Supreme Court will actually answer the question presented 

in Campbell-Ewald, as the Court originally granted certiorari to decide it in Genesis Healthcare 

Corp. v. Symczyk, 133 S. Ct. 1523 (2013), but ultimately punted. See Bais, 798 F.3d at 49; 

Chapman v. First Index, Inc., 796 F.3d 783 (7th Cir. 2011). 
PLAINTIFF’S RESPONSE IN OPPOSITION

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9 

complete relief has been tendered and the Court would still have to determine whether any offer 

was in fact “complete” before Campbell-Ewald could apply. As the Ninth Circuit has made clear, 

a defendant’s offer of judgment must give complete satisfaction to the plaintiff for the case to be 

considered moot. See GCB Commun., Inc. v. U.S. S. Commun., Inc., 650 F.3d 1257, 1267 (9th 

Cir. 2011) (holding that a case will “become moot” only “when an opposing counsel has agreed 

to everything the other party has demanded”); Diaz v. First Am. Home Buyers Protec. Corp., 732 

F.3d 948, 952 (9th Cir. 2013) (confirming the holding in GCB Commun.).5 Indeed, “as long as 

the parties have a concrete interest, however small, in the outcome of the litigation, the case is 

not moot.” Smith v. Progressive Fin. Services, Inc., 6:12-CV-1704, 2013 WL 3995004, at *4 (D. 

Or. Aug. 1, 2013). 

Thus, regardless of how the Supreme Court decides Campbell-Ewald, ViSalus will not be 

entitled to a dismissal unless it makes an offer of judgment providing complete monetary and 

injunctive relief. That question is not so straightforward, however—especially where, as in this 

case, a request for injunctive relief is at issue—and has routinely been a basis for denying 

motions to dismiss after an offer has been made. See, e.g., GCB Commun., Inc. 650 F.3d at 1267 

(holding that the district court “certainly . . . did not lose jurisdiction over the case” where 

proposal to settle only offered certain of the improvements requested); see also, e.g., Smith, 2013 

WL 3995004, at *10; Peters, 2015 WL 5216709, at *9; Mays v. Grand Daddy’s, LLC, No. 14-

 

5

 This is a well-established rule of law across the country. See Boyle v. Int’l Bhd. of 

Teamsters Local 863 Welfare Fund, 579 Fed. App’x 72, 75 (3d Cir. 2014) (“[A] unilateral offer 

of relief that fails to cover the entire claim does not render moot a plaintiff's claim.”); accord 

Payne v. Progressive Fin. Servs., Inc., 748 F.3d 605, 607 (5th Cir. 2014); Hrivnak v. NCO 

Portfolio Mgmt., Inc., 719 F.3d 564, 567 (6th Cir. 2013); Zinni v. ER Solutions, Inc., 692 F.3d 

1162, 1166-67 (11th Cir. 2012); Simmons v. United Mortg. And Loan Inv., LLC, 634 F.3d 754 

(4th Cir. 2011); Gates v. Towery, 430 F.3d 429, 432 (7th Cir. 2005). 
PLAINTIFF’S RESPONSE IN OPPOSITION

TO DEFENDANT’S MOTION TO STAY

10 

cv-461, 2015 WL 75067, at *3-4 (W.D. Wis. Jan. 6, 2015); Milbourne v. JRK Residential Am., 

LLC, No. 12-cv-861, 2014 WL 1369378, at *4 (E.D. Va. Apr. 7, 2014). 

Accordingly, ViSalus’s assurance that it “intends to make a Rule 68 offer . . . for the 

relief [Wakefield] seeks” pending a favorable ruling, is meaningless unless Wakefield has the 

offer in hand and can evaluate whether it actually provides everything she seeks. Without it, 

there is simply no way to determine whether Campbell-Ewald will have any effect on this 

litigation. 

III. The Balance of Harms Councils Against a Stay. 

Next, the balance of the respective harm to the parties—which essentially considers the 

first and second Hall factors, see U.S. v. Miljus, CV 06-1832, 2007 WL 4976368, at *4 (D. Or. 

July 27, 2007), report and rec. adopted in part, rejected in part on other grounds, No. 06-1832, 

2007 WL 4287608 (D. Or. Dec. 3, 2007) (citing Lockyer, 389 F. 3d at 110)—likewise weighs 

against a stay of these proceedings. 

A. ViSalus has not and cannot establish that any hardship would result to it in 

the absence of a stay. 

Foremost, ViSalus contends that a stay would result in hardship because it would require 

the Parties to waste time and resources on class certification and discovery. (Mot. at 5.) This is a 

non-starter. Putting aside that there is a significant possibility that the Supreme Court will affirm

the Spokeo and Campbell-Ewald decisions—nullifying Defendant’s speculative arguments 

entirely—the Ninth Circuit has made clear that “being required to defend suit, without more, 

does not constitute a clear case of hardship or inequity within the meaning of Landis.” Lockyer, 

398 F. 3d. at 1112; see also Montez. v. Chase Home Fin. LLC, No. 11-cv-530, 2011 WL 

2729445, at *1 (S.D. Cal. July 13, 2011) (rejecting the argument that class discovery amounted 

to hardship under Lockyer); Doe v. Selection.com, No. 15-CV-02338, 2015 WL 5853700, at *4-5 
PLAINTIFF’S RESPONSE IN OPPOSITION

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11 

(N.D. Cal. Oct. 8, 2015) (same). Moreover, and as noted above, Defendant cannot seriously 

argue that harm will result by pressing forward without a ruling in Campbell-Ewald, where no 

offer has even been made. See, e.g., Peters, 2015 WL 5216709, at *9; Bais, 2015 WL 8784250, 

at *3; Boswell, 2015 WL 6445396, at *9. 

More significantly, however, proceeding expeditiously imposes no hardship on ViSalus 

because the chance a defendant-favorable decision in Spokeo will dispose of this case is 

essentially zero. Putting aside that Plaintiff has alleged a far more concrete harm than the one at 

issue in Spokeo and it is unlikely that the Court’s ruling will reach TCPA cases (see supra 

Section II.A), Defendant’s argument presupposes that only a federal forum exists for Plaintiff’s 

claims. That is not so. There can be no doubt that both state and federal courts have concurrent 

jurisdiction over private suits arising out of the TCPA. See generally, Mims, 132 S. Ct. 740. And, 

it is equally clear that Article III standing requirements do not apply in Oregon state courts. See 

Kellas v. Dept. of Corrections, 341 Or. 471, 478 (Or. 2006) (explaining that “the constraints of 

Article III do not apply to state courts” and further holding that Oregon Courts will not “import 

federal law regarding justiciability . . . to fabricate constitutional barriers to litigation with no 

support in either the text or history of Oregon’s character of government.”) (citing ASARCO Inc. 

v. Kadish, 490 U.S. 605, 617 (1989)). 

As such, even in the unlikely event that Spokeo establishes that Plaintiff cannot proceed 

in federal court, she will pursue her claims in state court where the Parties would litigate class 

certification under near identical standards and using the same discovery. See, e.g., Froeber v. 

Liberty Mut. Ins. Co., 222 Or. App. 266, 277, n. 9 (2008) (“Oregon statutes governing class 

actions are modeled after the federal rules.”). Therefore, it is clear that even if this case does not 
PLAINTIFF’S RESPONSE IN OPPOSITION

TO DEFENDANT’S MOTION TO STAY

12 

move forward in this District, it will proceed in some forum, no matter the outcome of Spokeo.

6

Thus, ViSalus’s argument that it would be required to unnecessarily expend “tens of thousands 

of dollars in litigation” absent a stay, is simply not true. See Versa Corp. v. Ag-Bag Int’l. Ltd., 

No. cv-01-544, 2001 WL 34046241, at *5 (D. Or. Sept. 14, 2001) (denying stay because it was 

“quite apparent” that litigation of the case was “inevitable, regardless of the outcome at the 

Federal Circuit” and “granting the stay would merely delay the inevitable”); Siding & Insulation 

Co. v. Beachwood Hair Clinic, Inc., No. 1:11-CV-01074, 2011 WL 4005396, at *1 (N.D. Ohio 

Sept. 8, 2011) (explaining that “[e]ven if the Supreme Court later holds that federal district 

courts have no jurisdiction in private TCPA actions, the Plaintiffs are likely to refile this case in [ 

] state court,” and therefore, “any discovery could likely be used in that refiled case, and it would 

not promote judicial economy and efficiency to delay discovery”).7 

 

6

 Likewise, considering Plaintiff’s allegations that Defendant’s unlawful conduct affects 

thousands of consumers, offering relief to a single plaintiff is extremely unlikely to be the end of 

the road for ViSalus. Pick-off or no pick-off, it will eventually have to engage in discovery and 

litigate the claims with which it is now charged. 

7

 Defendant’s concern that a “defense ruling [in Spokeo] . . . would likely scuttle class 

certification” because it would require individuals to prove damages, and as a result, create 

individualized issues (Mot. at 5-6), is likewise overstated. As the Ninth Circuit has made clear, 

“damage calculations alone cannot defeat certification,” see Pulaski & Middleman, LLC v. 

Google, Inc., 802 F.3d 979, 986 (9th Cir. 2015) (quoting Yokoyama v. Midland Nat. Life Ins. 

Co., 594 F.3d 1087, 1094 (9th Cir. 2010), and this is especially true where various other common 

issues—such as, inter alia, the overarching legality of Defendant’s telemarketing campaign, 

whether the calls contained a prerecorded voice, and whether treble damages are warranted—

predominate. And, while the “Oregon statutes governing class actions are modeled after the 

federal rules,” see Froeber, 222 Or. App. at 277, n. 9—necessitating the same discovery—

Oregon’s certification requirements are even less stringent, which further weakens Defendant’s 

argument. See Shea v. Chicago Pneumatic Tool Co., 164 Or. App. 198, 207 (1999) (Oregon state 

law requires the “predominance of common questions of law and fact as a ‘pertinent’ matter that 

the trial court must consider. It does not require predominance as a sine qua non of certification 

of any class.”) (citation omitted emphasis in the original). 
PLAINTIFF’S RESPONSE IN OPPOSITION

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13 

B. Granting a stay would result in significant harm to Plaintiff. 

In contrast to the harm Defendant claims it would suffer, the prejudicial effect of a stay 

on Plaintiff is by no means speculative. Plaintiff will no doubt be disadvantaged—potentially 

irreparably—by having to wait months to conduct discovery, while witnesses’ memories fade 

and documents inevitably become misplaced. See Wachner v. Aramark Educ. Services, Inc., CV 

02-528-BR, 2004 WL 1354274, at *2 (D. Or. June 15, 2004) (Brown, J.) (finding the argument 

that the plaintiff “may be prejudiced by loss of witnesses if the trial is delayed” to be persuasive); 

In re Galena Biopharma, 83 F. Supp. 3d at 1043 (explaining that “the passage of time inevitably 

impairs the discovery process, especially as to the memories of witnesses” and agreeing “that 

[the p]laintiffs w[ould] be harmed by a stay because of potential loss of evidence”). This is likely 

to be a particular problem in the instant matter as Plaintiff alleges that “Defendant uses a multilevel marketing structure” and employs “representatives . . . to carry out its sales” calls by 

offering “long-shot opportunities” that are “rarely paid in practice” (Compl. ¶¶ 2, 12), which 

likely affects employee retention. See LG Elecs., Inc. v. Eastman Kodak Co., No. 09-CV-0344, 

2009 WL 1468703, at *2 (S.D. Cal. May 26, 2009) (denying motion to stay and finding that 

prejudice could result “as the parties’ naturally experience turnover in workforces during a stay, 

[and] they may lose their ability to compel deposition and trial testimony from employees who 

leave the companies.”) (citation omitted). 

Moreover, Wakefield has a strong interest in proceeding expeditiously—and will be 

harmed if she cannot—in order to ensure that the documentary evidence she needs remains 

intact. See id. at *2 (denying a stay based, in part on “the unavoidable risk that important 

documents might be lost”). This concern is similarly heightened in the instant litigation given 

that the key pieces of evidence necessary to prove Plaintiff’s and the class members’ claims—
PLAINTIFF’S RESPONSE IN OPPOSITION

TO DEFENDANT’S MOTION TO STAY

14 

such as telephone call logs—are nearly always in the possession of third parties as well. See, e.g.,

Booth v. Appstack, Inc., No. C13-1533, 2015 WL 1466247, at *5 (W.D. Wash. Mar. 30, 2015) 

(identifying the need for third-party records to identify call recipients in a TCPA class action);

LG Elecs., Inc., 2009 WL 1468703, at *2 (denying the stay and noting that the “risk [of losing 

necessary evidence] is greater when important documents are under the control of third parties, 

as [third parties] might not be obligated to preserve that evidence.”). 

Finally, Defendant has not represented that its alleged privacy violations have ceased, and 

any delay in obtaining the ultimate injunctive relief sought by Plaintiff to stop the invasive calls 

will certainly be harmful if permitted to continue. See Montez, 2011 WL 2729445, at *2 (finding 

that there was a “fair possibility that a stay would harm [p]laintiffs and members of the putative 

class” where plaintiffs “not only s[ought] damages, but also injunctive relief”); Del Vecchio v. 

Amazon.com, No. 11-cv-0366, 2011 WL 1585623, at *1 (W.D. Wash. Apr. 27, 2011) (denying 

motion for a discovery stay because “plaintiffs could suffer prejudice by a ... stay, in part 

because they seek to enjoin on-going allegedly wrongful conduct.”) 

In the end, because ViSalus has failed to satisfy its burden of demonstrating any hardship 

absent a stay, and Plaintiff will suffer significant harm if a stay issues, Defendant’s Motion 

should be denied. See In re Galena Biopharma, 83 F. Supp. 3d at 1043 (where “there is a fair 

possibility that [p]laintiffs will be harmed by a stay, the [m]oving [d]efendants must make a 

“clear case of hardship or inequity in being required to go forward.”) (citing Lockyer, 398 F.3d at 

1109). 

IV. The Extrajurisdictional Orders Cited by ViSalus in Support of a Stay are Not a 

Basis to Ignore Application of the Law in this Circuit, Nor are They Persuasive. 

Finally, Defendant seems to suggest that granting the stay is warranted simply because 

“so many [other] district courts have done” so. (Mot. at 6.) This logic is not compelling. As an 
PLAINTIFF’S RESPONSE IN OPPOSITION

TO DEFENDANT’S MOTION TO STAY

15 

initial matter, ViSalus neglects that “this court does not have authority to await a ruling by the 

Supreme Court when the Ninth Circuit has already decided an issue of law,” Starbucks Corp. v. 

Lundberg, No. 02-cv-948, 2004 WL 2554578, at *1 (D. Or. Nov. 10, 2004) (citing Yong v. 

I.N.S., 208 F.3d 1116, 1119 n.2 (9th Cir. 2000) and McClellan v. Young, 421 F.2d 690, 691 (6th 

Cir. 1970)), which is the exact situation here. Indeed, the law in the Ninth Circuit is clear that 

Plaintiff has the requisite Article III standing to bring her TCPA claims, see Robins, 742 F.3d at 

412 (“the violation of a statutory right is usually a sufficient injury in fact to confer standing”) 

(citing Edwards v. First Am. Corp., 610 F.3d 514, 517 (9th Cir. 2010)), as well as that an 

unaccepted offer of judgment—had one been made—could not moot her claims. See Gomez v. 

Campbell-Ewald Co., 768 F.3d 871, 875 (9th Cir. 2014) (“[A]n unaccepted Rule 68 offer that 

would fully satisfy a plaintiff's claim is insufficient to render the claim moot”) (quoting Diaz, 

732 F.3d at 950). This Court is bound by, and should not stray from, this authority. Starbucks 

Corp., 2004 WL 2554578, at *1.8 

That aside, the handful of opinions cited by ViSalus do not support the grant of a stay 

 

8

 To be sure, various courts across the country have refused to issue stays based on the 

same premise, see, e.g., Woods v. Caremark PHC, L.L.C., No. 15-cv-00535, 2015 WL 6742124, 

at *3 (W.D. Mo. Nov. 2, 2015) (denying motion to stay, noting that “[a]lthough the Court 

recognizes that Spokeo might impact this case, Eighth Circuit precedent presently provides 

Plaintiff has standing to bring this claim”) (emphasis in original); Speer v. Whole Food Mkt. 

Grp., Inc., No. 14-cv-3035, 2015 WL 2061665, at *1 (M.D. Fla. Apr. 29, 2015) (“The Court 

concludes ... that a grant of certiorari by the Supreme Court does not change the law and does 

not constitute new law [and] that a stay of these proceedings to await a decision from the 

Supreme Court in Spokeo is not warranted.”); Coniglio v. Radian Group, Inc. et al, No. 8:15-cv02406, Dkt. 32 (M.D. Fla. Oct 13, 2015) (denying a stay based on the impending Spokeo 

decision and noting that “until the Supreme Court issues a decision that actually changes the law, 

we are duty-bound to apply this Court’s precedent”) (quoting Gissendaner v. G. Dep’t. of Corr., 

779 F.3d 1275, 1284 (11th Cir. 2015) (internal quotations omitted), and the Seventh Circuit has 

gone so far as to as to reverse itself and affirmatively change its law on the mootness issue, 

despite that Campbell-Ewald was pending. See Chapman, 796 F.3d at 786 (explaining that 

although “[t]he issue is before the Supreme Court in Gomez, we think it best to clean up the law 

of this [C]ircuit promptly, rather than require Chapman and others in his position to wait another 

year for the Supreme Court’s decision.”). 
PLAINTIFF’S RESPONSE IN OPPOSITION

TO DEFENDANT’S MOTION TO STAY

16 

either. In addition to the fact that not a single one of these cases is binding on this Court, their 

persuasiveness is limited because the factual circumstances in those cases are plainly 

distinguishable. See, e.g., Tel. Science Corp. v. Hilton Grand Vacations Co., LLC, No. 6:15-cv969-Orl-41, 2015 WL 7444409, at *3 (M.D. Fla. Nov. 20, 2015) (granting stay where “there 

[wa]s no indication that [the plaintiff] will suffer any prejudice”); Eric B. Fromer Chiropractic, 

Inc. v. New York Life Ins. & Annuity Corp., No. CV 15-04767, 2015 WL 6579779, at *2 (C.D. 

Cal. Oct. 19, 2015) (granting stay because “plaintiff d[id] not suggest that a stay would harm 

anyone” and where Defendant had made an offer of judgment and moved to dismiss based on a 

lack of standing argument); Larson v. Trans Union, LLC, No. 12-cv-05726, Dkt. 86 (N.D. Cal. 

June 26, 2015) (granting stay based on Spokeo in FCRA action because discovery had already 

been completed);9 Wolf v. Lyft, Inc., No. 15-01441, 2015 WL 4455965, at *2 (N.D. Cal. July 20, 

2015) (granting stay based on Campbell-Ewald where offer of judgment had been made); Boise 

v. ACE USA, Inc., No. 15-cv-21264, 2015 WL 4077433, at *6-7 (S.D. Fla. July 6, 2015) 

(same).10 

 

9

 Indeed, in Doe, 2015 WL 5853700, at *4, Judge Orrick distinguished his previous 

decision to grant a stay in Larson—a case cited by Defendants here (see Mot. 5, n. 4)—

explaining that the basis for the stay there was that the case was significantly “developed, 

procedurally-speaking,” and class certification had already been briefed. 

10 See also, e.g., Duchene v. Westlake Servs., LLC, No. 2:13-cv-01577, 2015 WL 5947669, 

at *3 (W.D. Pa. Oct. 13, 2015) (offer of judgment made and “substantial discovery” was already 

completed so risk of loss of evidence and/or witnesses was not “meaningful”); Yaakov v. 

Varitronics, LLC, No. 14-5008, 2015 WL 5092501, at *4 (D. Minn. Aug. 28, 2015) (same); 

Schartel v. OneSource Technology, LLC, No. 1:15-cv-1434, 2015 WL 7430056 (N.D. Ohio 

Nov. 17, 2015) (FCRA case and offer of judgment made); Williams v. Elephant Ins. Co., No. 

1:15-CV-00119, 2015 WL 3631691 (E.D. Va. May 27, 2015) (defendant made offer of judgment 

and moved to dismiss for lack of jurisdiction); Salvatore v. Microbilt Corp., No. 4:14-cv-1848, 

2015 WL 5008856 (M.D. Pa. Aug. 20, 2015) (FCRA case); Provo v. Rady Children’s Hospital—

San Diego, No. 15-cv-0081, 2015 WL 6144029 (S.D. Cal. July 29, 2015) (same); Stone v. 

Sterling Infosystems, Inc., No. 2:15-CV-00711, 2015 WL 4602968 (E.D. Cal. July 29, 2015) 

(same); Hillson v. Kelly Servs., Inc., No. 2:15-cv-10803, 2015 WL 4488493 (E.D. Mich. July 15, 

2015) (same); Lopez v. Miami-Dade County, No. 15-cv-22943, 2015 WL 7202905 (S.D. Fla. 
PLAINTIFF’S RESPONSE IN OPPOSITION

TO DEFENDANT’S MOTION TO STAY

17 

It is likewise undermined by the fact that equally as many (if not more) cases have come 

out the exact opposite way. See Doe, 2015 WL 5853700, at *5 (denying stay in FCRA action 

based on Spokeo); Keim v. ADF MidAtlantic, LLC, No. 12-80577, Dkt. 123 (S.D. Fla. Dec. 17, 

2015) (denying stay of TCPA action based on Spokeo despite that plaintiff “seeks solely 

statutory damages” because Spokeo’s “outcome is unlikely to have an effect on this case”); 

McCaskill v. Navient Solutions, Inc., No. 15-cv-01559, Dkt. 48 (M.D. Fla. Dec. 2, 2015) (same); 

Birchmeier v. Caribbean Cruise Line, Inc., No. 12-cv-04069, Dkt. 360 (N.D. Ill. Nov. 24, 2015) 

(denying stay in TCPA action where the right to recover actual damages had been waived (see 

Dkt. 241 at 25), within 24 hours and without requiring briefing); Lathrop v. Uber Technologies, 

Inc., No. 14-cv-05678, Dkt. 112 (N.D. Cal., Jan 8, 2015) (denying stay of TCPA case based on 

Spokeo); Kafatos v. Uber Technologies, Inc., No. 15-cv-03727, Dkt. 40 (N.D. Cal., Jan 8, 2015) 

(same); Peters, 2015 WL 5216709, at *10 (denying motion to stay pending outcome of 

Campbell-Ewald); Family Health Chiropractic, Inc., v. MD On-Line Solutions, Inc., No. 15-

3508, Dkt. 35 (6th Cir. Sept. 2, 2015) (same).11 Thus, Defendant’s argument here does nothing to 

 

Nov. 6, 2015) (non-TCPA case); St. Louis Heart Ctr., Inc. v. Athenahealth, Inc., No. 4:15-cv01215, 2015 WL 6777873 (E.D. Mo. Nov. 4, 2015) (offer of judgment made and jurisdictional 

motion to dismiss filed). 

11 See also, e.g., Bais, 2015 WL 8784250 (denying stay in TCPA case); Ricardi v. Ed Ideas, 

Inc., No. 15-cv- 80488, Dkt. 41 (S.D. Fla. Dec. 3, 2015) (declining to issue stay in TCPA case); 

Woods, 2015 WL 6742124, at *3 (denying stay of FCRA action based on Spokeo); Speer, 2015 

WL 2061665, at 1 (denying stay of FCRA action based on Spokeo without briefing); Coniglio, 

No. 15-cv-02406, Dkt. 32 (denying stay in TCPA action); Chapman, 796 F.3d at 786 (denying a 

stay based on Campbell-Ewald); Boswell, 2015 WL 6445396, at *8 (same); Kolinek, 2015 WL 

7450759, at *5 (N.D. Ill. Nov. 23, 2015) (approving TCPA settlement over Spokeo-related 

objection because the case was “unaffected by the Supreme Court’s decision to address whether 

an individual who has not alleged any physical or economic harm has standing to sue for 

statutory damages under the [FCRA]”); Dreher v. Experian Info. Solutions, Inc., Case No. 11-

CV-00624, Dkt. 344 (E.D. Va. Apr. 30, 2015) (denying Spokeo motion to stay); Manuel v. Wells 

Fargo Bank, No. 3:14-cv-00238, Dkt. 92 (E.D. Va. Aug. 18, 2015) (same); Dennis v. Trans 

Union LLC, No. 14-cv-2865, Dkt. 49 (E.D. Pa. Jan. 12, 2016) (denying stay of FCRA action 

based on Campbell-Ewald). 
PLAINTIFF’S RESPONSE IN OPPOSITION

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18

further its position. 

CONCLUSION

Defendant’s Motion to Stay should therefore be denied in its entirety.

Respectfully submitted,

LORI WAKEFIELD, individually and on behalf 

of all similarly situated individuals, 

Dated: January 19, 2016 By: /s/ Eve-Lynn J. Rapp

One of Plaintiff’s Attorneys

Rafey S. Balabanian (Admitted pro hac vice)

rbalabanian@edelson.com 

Benjamin H. Richman (Admitted pro hac vice)

brichman@edelson.com 

Eve-Lynn Rapp (Admitted pro hac vice)

erapp@edelson.com 

EDELSON PC

350 North LaSalle Street, 13th Floor

Chicago, Illinois 60654

Tel: 312.589.6370

Fax: 312.589.6378

Scott F. Kocher, OSB #015088

scott@forumlawgroup.com

FORUM LAW GROUP LLC

811 SW Naito Parkway, Suite 420

Portland, Oregon 97204

Tel: 503.445.2102

Fax: 503.445.2120
PLAINTIFF’S RESPONSE IN OPPOSITION

TO DEFENDANT’S MOTION TO STAY

CERTIFICATE OF SERVICE 

I hereby certify that I served the foregoing Plaintiff’s Response in Opposition to 

Defendant’s Motion to Stay: 

Joshua M. Sasaki, P.C. 

Josh.sasaki@millernash.com 

Jonathan H. Singer 

Jonathan.singer@millernash.com 

Miller Nash Graham & Dunn LLP 

3400 U.S. Bancorp Tower 

111 S.W. Fifth Avenue 

Portland, Oregon 97204 

Tel: 503.224.5858 

Fax: 503.224.0155 

by the following indicated method or methods on the date set forth below: 

ý CM/ECF system transmission. 

 ̈ E-mail. As required by Local Rule 5.2, any interrogatories, requests for 

production, or requests for admission were e-mailed in Word or WordPerfect 

format, not in PDF, unless otherwise agreed to by the parties. 

 ̈ Facsimile communication device.

 ̈ First-class mail, postage prepaid.

 ̈ Hand-delivery.

 ̈ Overnight courier, delivery prepaid.

DATED this 19th day of January, 2016.

/s/ Eve-Lynn J. Rapp