IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

LORI WAKEFIELD, individually 

and on behalf of all others 

similarly situated, 

Plaintiff, 

v. 

VISALUS, INC., a Nevada 

corporation, 

Defendant. 

BROWN, Senior Judge. 

3:15-cv-01857-BR 

ORDER 

This matter comes before the Court on Plaintiff's Motion 

(#93) for Approval of Class Notice Plan. The Court GRANTS in 

part and DENIES in part Plaintiff's Motion as follows: 

The Court concludes Plaintiff's proposed Notice Plan meets 

the requirements of Federal Rule of Civil Procedure 23 (c) (2) (B) 

with the modifications indicated below. 

The Court further concludes the database of proposed class 

members (1.937 million) is not over-inclusive. To the extent 

Defendant is able to provide explicit information to Plaintiff 

that any of the calls to numbers identified in Plaintiff's 

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Case 3:15-cv-01857-SI Document 106 Filed 02/15/18 Page 1 of 3
database (a) were not marketing calls or (b) did not go through 

or were not answered either by a person or an answering machine, 

the Court DIRECTS Defendant to provide such information to 

Plaintiff no later than March 19, 2018. If Plaintiff is able to 

determine based on the information provided by Defendant that 

calls were not marketing calls or did not go through or were not 

answered either by a person or answering machine, the Court 

DIRECTS Plaintiff to remove those numbers from the database and 

to give Notice to remaining potential class members identified in 

Plaintiff's database. If Plaintiff contests Defendant's 

information, the Court DIRECTS the parties to confer and to file 

a Joint Status Report no later than April 2, 2018, stating each 

parties' position regarding this issue. 

The Court APPROVES Plaintiff's proposed Notice Plan with the 

following modifications: 

(1) Notification by email to potential class members is the 

best notice that is practicable under the circumstances 

of this case. The Court DIRECTS Notice by email to be 

given to those persons who provided email addresses to 

ViSalus as part of their contact information. For 

those persons who provided only a postal address, the 

Court DIRECTS Plaintiff to use a reverse-lookup 

procedure to identify potential email addresses. For 

those persons who did not provide either an email or a 

postal address, the Court DIRECTS Plaintiff to attempt 

to locate either an email or a postal address and is 

authorized to send initial Notice by email. The Court 

DIRECTS Plaintiff to take necessary precautions to 

reduce the chance of emails being blocked by spam 

filters and to send follow-up postal notice for emails 

that bounce back or that are not delivered or blocked. 

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Case 3:15-cv-01857-SI Document 106 Filed 02/15/18 Page 2 of 3
(2) The Court does NOT APPROVE Media Notice (banner ads) to 

potential class members. 

(3) The Court DIRECTS the language of Notice forms and the 

class action Website to be modified as follows: 

a. Use of the terms "automated" or "robocalling" is 

misleading and confusing and the Court DIRECTS 

Plaintiff to replace those terms with the term 

"prerecorded." 

b. Use of the word "unsolicited" is not appropriate, 

and the Court DIRECTS Plaintiff to remove such 

language. 

c. The language "[t]housands of individuals allegedly 

received the automated calls and are Class 

Members" does not reflect the finding of the 

Court, and the Court DIRECTS Plaintiff to remove 

that language from Section 4 of the Website. 

d. The Court DIRECTS Plaintiff to modify Section 10 

of the Website to state that although a person may 

have documentation of receiving a call from 

ViSalus, that documentation may not be sufficient 

to assert a claim or to establish damages. 

IT IS SO ORDERED. 

DATED this day of February, 2018. 

United States Senior District Judge 

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