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

josh.sasaki@millernash.com 

Nicholas H. Pyle, OSB No. 165175

nicholas.pyle@millernash.com

MILLER NASH GRAHAM & DUNN LLP

3400 U.S. Bancorp Tower

111 S.W. Fifth Avenue

Portland, Oregon 97204

Telephone: 503.224.5858

Facsimile: 503.224.0155

Christine M. Reilly (pro hac vice)

creilly@manatt.com

John W. McGuinness (pro hac vice)

jmcguinness@manatt.com 

MANATT, PHELPS & PHILLIPS LLP 

11355 W. Olympic Blvd 

Los Angeles, CA 90064

Telephone: 310.312.4000

Facsimile: 310.312.4224

John Maston O’Neal (pro hac vice)

john.oneal@quarles.com

Zachary S. Foster (pro hac vice)

zachary.foster@quarles.com 

QUARLES & BRADY LLP

Two N. Central Avenue

One Renaissance Square

Phoenix, Arizona 85004-2391

Telephone: 602.229.5200

Facsimile: 602.229.5690

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 SUPPLEMENTAL BRIEF 

IN SUPPORT OF MOTION TO

DECERTIFY THE CLASS

Oral Argument Requested 

Case 3:15-cv-01857-SI Document 327 Filed 06/28/19 Page 1 of 23
TABLE OF CONTENTS

Page

- i -

I. INTRODUCTION ...............................................................................................................1

II. PROCEDURAL HISTORY.................................................................................................2

A. The FCC’s New Telemarketing Regulations, Effective October 16, 2013, 

Require “Prior Express Written Consent” ...............................................................2

B. The FCC Grants Visalus A Retroactive Waiver From The TCPA’s Prior 

Express Written Consent Requirements ..................................................................2

III. ARGUMENT.......................................................................................................................3

A. The Class Must Be Decertified on the Threshold Basis that Plaintiff Lacks 

Standing ...................................................................................................................3

B. The Class Should be Decertified Because Individual Issues Predominate..............7

1. Key Threshold Issues Will Predominate in Determining Which 

Class Members Qualify for the Waiver .......................................................7

2. Thousands of Individual Issues Predominate on Consent ...........................8

C. Plaintiff’s Claims are Not Typical of the Class Because She Lacks 

Standing and Proof of Her Claim Does Not Resolve the Class Claims.................16

D. Plaintiff Fails to Prove Numerosity .......................................................................17

E. Class Treatment is Not Superior or Manageable Given the Thousands of 

Mini-Trials That are Necessary to Determine Prior Express Consent...................17

IV. CONCLUSION..................................................................................................................17

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TABLE OF AUTHORITIES

Page

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CASES

Baird v. Sabre Inc.,

995 F. Supp. 2d 1100, 1102–03 (C.D. Cal. 2014) .....................................................................5

Bais Yaakov of Spring Valley v. FCC,

852 F.3d 1078 (D.C. Cir. 2017)...............................................................................................13

Bender v. Williamsport Area School Dist.,

475 U.S. 534 (1986).................................................................................................................12

Brodsky v. HumanaDental Ins. Co.,

269 F. Supp. 3d 841, 846-48 (N.D. Ill. 2017)................................................................3, 13, 14

Burrell v. Crown Cent. Petrol., Inc.,

197 F.R.D. 284 (E.D. Tex. 2000).............................................................................................17

Flores v. Supervalu, Inc.,

509 F. App’x 593 (9th Cir. 2013)..............................................................................................7

Gen. Tel. Cov. Of Sw. v. Falcon,

457 U.S. 147 (1982).................................................................................................................16

Gene & Gene LLC v. BioPay LLC,

541 F.3d 318 (5th Cir. 2018) ...............................................................................................9, 16

Huyge v. Gold’s Gym Franchising, LLC,

No. CV-13-02378-PHX-SRB, 2014 WL 11515701 (D. Ariz. July 3, 

2014) ..........................................................................................................................................5

In the Matter of Rules and Regulations Implementing the Tel. Consumer 

Protection Act of 1991,

27 F.C.C. Rcd. 1830 (2012).......................................................................................................7

In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 

1991,

7 FCC Rcd. 8752 (1992)........................................................................................................2, 5

Jamison v. First Credit Services, Inc.,

290 F.R.D. 92 (N.D. Ill. 2013)...................................................................................................9

Katz v. Am. Honda Motor Co.,

No. 15-CV-4410-CBM-RAOX, 2017 WL 3084272 (C.D. Cal. June 29, 

2017) ........................................................................................................................................15

Lierboe v. State Farm Mut. Auto. Ins. Co.,

350 F.3d 1018 (9th Cir. 2003) .........................................................................................4, 7, 16

Min Sook Shin v. Umeken USA, Inc.,

—F. App’x—, No. 17-56767, 2019 WL 2338467 (9th Cir. June 3, 

2019) ......................................................................................................................................4, 7

Case 3:15-cv-01857-SI Document 327 Filed 06/28/19 Page 3 of 23
TABLE OF AUTHORITIES

(continued)

Page

- iii -

NEI Contracting & Engr., Inc. v. Hanson Aggregates, Inc.,

12-CV-01685-BAS(JLB), 2016 WL 2610107, at *7 (S.D. Cal. May 6, 

2016) ....................................................................................................................................7, 12

NEI Contracting & Engr., Inc. v. Hanson Aggregates Pac. Sw., Inc.,

2019 WL 2361800 (9th Cir. June 5, 2019)......................................................................4, 7, 12

O’Shea v. Littleton,

414 U.S. 488 (1974)...............................................................................................................4, 7

Prado–Steiman v. Prado,

221 F.3d 1266 (11th Cir. 2000) ...............................................................................................16

Roberts v. PayPal, Inc.,

621 F. App’x 478 (9th Cir. Oct. 29, 2015) ................................................................................5

Sandusky Wellness Center, LLC v. ASD Specialty Healthcare, Inc.,

No. 3:13-CV-2085, 2016 WL 75535 (N.D. Ohio Jan. 7, 2016) ............................11, 13, 15, 16

Sherman v. Yahoo! Inc.,

No. 13CV0041-GPC-WVG, 2015 WL 5604400 (S.D. Cal. Sept. 23, 

2015) ........................................................................................................................................15

Simon v. Healthways,

No. CV 14-08022-BRO, 2015 WL 10015953 (C.D. Cal. Dec. 17, 

2015) ..............................................................................................................................3, 13, 14

Smith v. City of Corvallis,

No. 6:14-cv-01382, 2016 WL 3193190 (D. Or. June 6, 2016)................................................17

Smith v. Microsoft Corp.,

297 F.R.D. 464 (S.D. Cal. 2014) .........................................................................................9, 14

Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016)...............................................................................................................4

Summer York v. Starbucks Corp.,

No. CV0807919GAFPJWX, 2012 WL 12507388 (C.D. Cal. Nov. 1, 

2012) ........................................................................................................................................16

Wal-Mart Stores, Inc. v. Dukes,

564 U.S. 338 (2011)...........................................................................................................16, 17

STATUTES

47 U.S.C. § 227(b)(1)(A).................................................................................................................7

OTHER AUTHORITIES

47 C.F.R. § 64.1200(a)(4)(iv) (2013) ............................................................................................13

Case 3:15-cv-01857-SI Document 327 Filed 06/28/19 Page 4 of 23
TABLE OF AUTHORITIES

(continued)

Page

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47 C.F.R. § 64.1200(c).....................................................................................................................7

47 C.F.R. § 64.1200(f)(8) ................................................................................................................2

47 C.F.R. § 64.1200(f)(8)(i)(A).......................................................................................................7

47 C.F.R. § 64.1200(f)(14) ..............................................................................................................7

Rules and Regulations Implementing the Tel. Consumer Protection Act of 

1991, CG Docket No. 02-278, Report and Order, 27 FCC Rcd 1830, 

1831, ¶ 1 n.1 (2012)..................................................................................................................2

Rules and Regulations Implementing the Telephone Consumer Protection 

Act of 1991, Declaratory Ruling, 31 FCC Rcd 11643 (Oct. 14, 2016)......................................3

Rules and Regulations Implementing the Telephone Consumer Protection 

Act of 1991, CG Docket No. 02-278, Declaratory Ruling and Order, 30 

FCC Rcd 7961 (July 10, 2015) ..................................................................................................3

TCPA Order, 7 FCC Rcd at 8769, ¶ 31 ...........................................................................................7

TCPA Order, 64.1200(f)(8)(i)(A)....................................................................................................2

TCPA Order, 64.1200(f)(8)(i)(B) ....................................................................................................2

Case 3:15-cv-01857-SI Document 327 Filed 06/28/19 Page 5 of 23
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I. INTRODUCTION

In its Motion to Decertify the Class, ViSalus demonstrated in no uncertain terms the 

numerous reasons why a class action is no longer appropriate in this case. While those reasons 

are plainly sufficient to decertify the class, a major development occurred in this case on June 13, 

2019, when the Federal Communications Commission (“FCC”) issued an Order granting ViSalus 

a retroactive waiver from compliance with the technical requirements of “prior express written 

consent” under the Telephone Consumer Protection Act (“TCPA”). The FCC’s Waiver Order 

only further demonstrates why this case cannot continue as a class action and why the class must 

be decertified. 

Significantly, because Plaintiff herself falls squarely within the FCC Waiver Order and 

provided “prior express consent” to ViSalus, she has no claim, is not a member of the class and 

lacks standing. Judge Brown did not have the benefit of the FCC Waiver Order when she 

certified the robocall class (and declined to certify two other putative classes) in June 2017. If 

she had, the class would not have been certified in the first place. Binding Ninth Circuit 

authority—as recent as this month—makes clear that under these circumstances, where a class 

representative has no claim she lacks standing, and the class must be decertified. The Court 

should decertify the class on this basis alone and need not consider Rule 23 requirements.

However, even in the event that the Court elects to consider these requirements, it will be 

faced with a tsunami of individual issues that predominate in determining which class members 

qualify for the waiver and which members provided consent. The individualized inquiries that 

will now be required for each class member are not only overwhelming but are innumerable. For 

these same reasons, courts have decertified or refused to certify classes after defendants have 

been granted a retroactive waiver from the FCC. 

These issues also demonstrate that Plaintiff is not a typical plaintiff. After all, she is not 

even a member of the class she purports to represent. Similarly, Plaintiff cannot establish 

numerosity, and the class is completely unmanageable and inferior to other methods of 

adjudication. While ViSalus believes the answer was clear before, there can be no question now

Case 3:15-cv-01857-SI Document 327 Filed 06/28/19 Page 6 of 23
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that a class action is not appropriate. Rather than deprive the class of a remedy, the class should 

be decertified, so that any aggrieved class member can file an individual claim for damages.

II. PROCEDURAL HISTORY

A. The FCC’s New Telemarketing Regulations, Effective October 16, 2013,

Require “Prior Express Written Consent”

In 2012, the FCC issued new regulations for telemarketing calls, including the use of 

prerecorded messages, to both residential landlines and mobile phones. The new regulations 

went into effect on October 16, 2013. As of that date, prerecorded telemarketing messages 

require “prior express written consent,” as expressly defined by the TCPA.

1

 

“Prior express written consent” under the new regulations requires, among other things, 

clear and conspicuous disclosures in an affirmative written agreement, including that (1) the 

consumer will receive calls that are telemarketing in nature; (2) that the call will be made “using 

an automatic telephone dialing system or an artificial or prerecorded voice”; and (3) that consent

to the telemarketing agreement is not a condition of purchasing any property, goods or services.2

Before these new regulations took effect on October 16, 2013, prerecorded telemarketing 

messages to residential landlines and mobile phones only required “prior express consent,”

which meant the voluntary provision of a phone number to a company.

3 

B. The FCC Grants Visalus A Retroactive Waiver From The TCPA’s Prior 

Express Written Consent Requirements

On September 14, 2017, ViSalus petitioned the FCC for a retroactive waiver of the prior 

express written consent requirements that went into effect on October 16, 2013. On June 13, 

 

1 47 C.F.R. § 64.1200(f)(8).

2 Id. § 64.1200(f)(8)(i)(A)&(B).

3 See Rules and Regulations Implementing the Tel. Consumer Protection Act of 1991, CG Docket 

No. 02-278, Report and Order, 27 FCC Rcd 1830, 1831, ¶ 1 n.1 (2012) (“2012 TCPA Order”);

see also In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7 FCC 

Rcd. 8752, 8769 ¶ 31 (1992) (“1992 TCPA Order”). Prerecorded informational messages to 

mobile phones also required prior express consent before the rule change. 

Case 3:15-cv-01857-SI Document 327 Filed 06/28/19 Page 7 of 23
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2019, the FCC granted ViSalus’ petition (“FCC Waiver Order”).

4

 In doing so, the FCC 

determined that ViSalus was similarly situated to previous petitioners to whom it had granted

waivers5 and that good cause existed to grant ViSalus a retroactive waiver. The FCC determined 

that granting a waiver to ViSalus “would better serve the public interest than would application 

of the rule” and “special circumstances warrant a deviation from the general rule.”6

In light of the FCC Waiver Order, ViSalus only needs to satisfy the lower, pre-October 

16, 2013 standard of “prior express consent” for prerecorded telemarketing calls (1) made on or 

before October 7, 2015; (2) to customers or promoters who provided consent in writing, such as 

an enrollment application; (3) where consent was obtained prior to October 16, 2013.

7 This 

means customers simply needed to provide a telephone number to Visalus to provide prior 

express consent. 

III. ARGUMENT

A. The Class Must Be Decertified on the Threshold Basis that Plaintiff Lacks 

Standing

To establish Article III standing, a plaintiff “must have (1) suffered an injury in fact, (2) 

 

4 FCC Order Granting ViSalus, Inc. and Bebe Stores, Inc.’s Petitions for Retroactive Waiver, CG 

Docket No. 02-278, 2019 WL 2490415 (June 13, 2019) (“FCC Waiver Order”); Dkt. 321.

5 ViSalus is not the first petitioner to be granted such a waiver. The FCC has granted waivers to 

several petitioners, recognizing that its prior orders did not make clear whether the more 

stringent level of consent was required for existing consumers who had provided consent in 

writing before the new regulations went into effect. See Rules and Regulations Implementing the 

Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Declaratory Ruling and 

Order, 30 FCC Rcd 7961 (July 10, 2015) (“2015 Declaratory Ruling”); Rules and Regulations 

Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling, 31 FCC Rcd 

11643 (Oct. 14, 2016) (“2016 Declaratory Ruling”).

6 FCC Waiver Order, ¶ 12. 

7 To the extent Plaintiff contends, like she did in passing (see Dkt. 322, at 4 n.4), that a 

retroactive waiver from the FCC does not have any effect in a private cause of action, Plaintiff is 

wrong. This argument has already been rejected by numerous courts. See, e.g., Simon v. 

Healthways, No. CV 14-08022-BRO (JCx), 2015 WL 10015953, at *7 (C.D. Cal. Dec. 17, 2015) 

(rejecting argument that waiver’s effect is limited to FCC enforcement actions); Brodsky v. 

HumanaDental Ins. Co., 269 F. Supp. 3d 841, 846-48 (N.D. Ill. 2017) (rejecting argument that 

waiver “has no effect in a private TCPA action”). 

Case 3:15-cv-01857-SI Document 327 Filed 06/28/19 Page 8 of 23
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that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be 

redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 

(2016). “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of 

a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not 

conjectural or hypothetical.’” Id. at 1548 (citations omitted). In a class action, this standing 

inquiry focuses on the class representatives. NEI Contracting & Engineering, Inc. v. Hanson 

Aggregates Pac. Sw.,—F.3d—, No. 16-56498, 2019 WL 2361800, at *3 (9th Cir. June 5, 2019). 

“[I]f none of the named plaintiffs purporting to represent a class establishes the requisite of a 

case or controversy with the defendants, none may seek relief on behalf of himself or any other 

member of the class.” Id. ( quoting O’Shea v. Littleton, 414 U.S. 488, 494 (1974)).

This Circuit’s precedent makes clear that where a plaintiff has no claim, she lacks 

standing to sue. See Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022–23 (9th Cir. 

2003) (class certification order “must be vacated” where named plaintiff lacked standing because 

she had no claim); Min Sook Shin v. Umeken USA, Inc.,—F. App’x—, No. 17-56767, 2019 WL 

2338467, at *2 (9th Cir. June 3, 2019) (“Because the district court properly dismissed Shin’s 

individual claims, Shin lacks standing to pursue class claims.”). Here, Plaintiff lacks standing 

because she never had a claim against ViSalus. 

Plaintiff Lori Wakefield enrolled with ViSalus as a promoter by filling out an online 

enrollment application in March 2012 (well before October 16, 2013).8 As part of the 

enrollment process, Plaintiff voluntarily provided her telephone number by typing it into the 

phone number field and then submitting her application.9

 Plaintiff testified at trial, and the jury 

found, that she received prerecorded telemarketing calls from ViSalus in April 2015 (well before

October 7, 2015).10 As a result of the FCC Waiver Order, ViSalus did not need Plaintiff’s “prior 

 8 See Dkt. 306, ViSalus’s Motion to Decertify Class (“Mot. to Decertify”), at n.75.

9 See Declaration of Kristin E. Haule (“Haule Decl.”) at ¶ 8, Ex. 1 (Apr. 11 Tr. at 216:20–217:5 

(L. Wakefield testimony)). 

10 Mot. to Decertify at nn.38, 44; see also Dkt. 282 (Jury Verdict).

Case 3:15-cv-01857-SI Document 327 Filed 06/28/19 Page 9 of 23
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express written consent” to contact her by phone; it only needed “prior express consent.” Stated 

differently, ViSalus only needed to satisfy the lower standard of consent before the new 

regulations went into effect on October 16, 2013. 

It is well-established that “prior express consent” under the TCPA means the voluntary 

provision of a phone number to a company. See In re Rules & Regulations Implementing the 

Tel. Consumer Protection Act of 1991, 7 FCC Rcd. 8752, 8769 ¶ 31 (1992) (“1992 TCPA 

Order”) (“persons who knowingly release their phone number have in effect given their 

invitation or permission to be called at the number which they have given, absent instructions to 

the contrary”); Id. at 8769 ¶ 31 n.57 (“[T]he called party has in essence requested the contact by 

providing the caller with their telephone number for use in normal business communications.”); 

Id. ¶ 31 (“Hence, telemarketers will not violate our rules by calling a number which was 

provided as one at which the called party wishes to be reached.”); see also Roberts v. PayPal, 

Inc., 621 F. App’x 478, 479 (9th Cir. Oct. 29, 2015) (plaintiff expressly consented to receive

messages from PayPal when he provided PayPal with his cell phone number); Huyge v. Gold’s 

Gym Franchising, LLC, No. CV-13-02378-PHX-SRB, 2014 WL 11515701, at *2–3 (D. Ariz. 

July 3, 2014) (“[T]he Court finds that Plaintiff gave his express consent to be contacted by 

providing his cellphone number on the Membership Agreement, and is therefore unable to state a 

claim under the TCPA.”); Baird v. Sabre Inc., 995 F. Supp. 2d 1100, 1102–03 (C.D. Cal. 2014) 

(“Myriad federal district courts have relied on the 1992 FCC Order ruling to conclude that 

plaintiffs who provided a business with their telephone number and then received a text message 

from the business had no claim under the [TCPA].”). 

Prior express consent is easily satisfied here because Plaintiff voluntarily provided her 

telephone number to ViSalus when she submitted a promoter application.11 Because Plaintiff 

provided prior express consent to be called, she has no claim under the TCPA.

12 See 47 U.S.C. 

 11 Mot. to Decertify at n.44 (“Q: Did you provide either a home phone number to ViSalus or a 

mobile phone number? A: I gave them my home phone.”). 

12 Plaintiff has argued that prior express consent must be for “marketing.” Dkt. 322 at 1–2. 

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§ 227(b)(1)(A) (providing that a TCPA action will not lie where the challenged call is made 

“with the prior express consent of the called party”). Put simply, Plaintiff lacks standing. See 

Lierboe, 350 F.3d at 1022–23; Min Sook Shin, 2019 WL 2338467, at *2; see also Flores v. 

Supervalu, Inc., 509 F. App’x 593, 594–95 (9th Cir. 2013) (named plaintiff did not have standing 

where she did not have a claim and was not a member of the class).

Since Plaintiff lacks standing on her individual claim, the class should be decertified. 

“[Ninth Circuit] precedent indicates that when a class is certified and the class representatives are 

subsequently found to lack standing, the class should be decertified and the case dismissed.” 

NEI Contracting, 2019 WL 2361800, at *3. The Ninth Circuit reiterated this long-standing 

principle just weeks ago in NEI Contracting. NEI was a call recording case, where the district 

court initially certified a class based on evidence the plaintiff presented regarding the timing of 

the recorded conversations. Id. at *2. However, after certification, the defendant presented new 

evidence that certain customers had actual knowledge of the recording process and continued to 

call. Id. Based on this evidence, the district court concluded that the predominance requirement 

had not been satisfied, and decertified the class. Id. However, with respect to this order, the 

Ninth Circuit held that the “case presents a threshold question: whether a class must be 

decertified when the class representative is found to lack standing as to its individual claims.” 

Id. at *3. 

Answering in the affirmative, the Ninth Circuit held that “a class must be decertified 

when the class representatives are found to lack standing as to their individual claims.” Id. See 

 

Plaintiff is mistaken. The new telemarketing rules, effective October 16, 2013, require 

disclosure that calls will be telemarketing in nature. 47 C.F.R. § 64.1200(f)(8)(i)(A). But the 

FCC expressly granted ViSalus a retroactive waiver from these disclosure requirements. See 

FCC Waiver Order ¶¶ 1, 11, 13. Also, Plaintiff incorrectly quotes from a portion of the FCC’s 

2012 Order that pertains to “telephone solicitations,” which are relevant only to the Do Not Call 

provisions of the TCPA, not at issue here. See 47 C.F.R. §§ 64.1200(c) & (f)(14). In fact, it is 

the very next sentence of the FCC’s Order that is pertinent—“The Commission has addressed 

prior express consent in other contexts, including the provision of telephone numbers...” In 

the Matter of Rules and Regulations Implementing the Tel. Consumer Protection Act of 1991, 27 

F.C.C. Rcd. 1830, 1833 (2012) (emphasis added) (citing 1992 TCPA Order, 7 FCC Rcd at 8769, 

¶ 31) (prior express consent is the voluntary provision of a telephone number). 

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also O’Shea, 414 U.S. at 494. Because the class representative lacked standing on its individual 

claims, the Ninth Circuit held that “the trial court did not abuse its discretion in decertifying the 

class” and affirmed the district court’s decertification order. NEI Contracting, 2019 WL 

2361800, at *4. See also Lierboe, 350 F.3d at 1022–23 (class certification order “must be 

vacated” where claim of named representative failed). Where, as here, “[Plaintiff] never was a 

member of the class she was named to represent,” the case must be dismissed. Lierboe, 350 F.3d 

at 1023 (quotation omitted). 

On this basis alone, the Court should decertify the class. In fact, the Court need not 

analyze Rule 23(a) and (b)(3) requirements. Because Plaintiff “has no [TCPA] claim, it is 

premature to assess the prerequisites of Rule 23(a) or the standards for compliance under Rule 

23(b)(3)[.] The issues of predominance, superiority, typicality, and other challenges to 

[Plaintiff]’s class representation need not be considered if [Plaintiff] is not in the subject class.” 

Lierboe, 350 F.3d at 1022. Nonetheless, to the extent the Court considers Rule 23 requirements, 

they only further demonstrate why the class must be decertified. 

B. The Class Should be Decertified Because Individual Issues Predominate

In ViSalus’ Motion to Decertify, ViSalus explained the various individual issues that will 

predominate if the class is not decertified, including (1) was the class member called on a 

residential or mobile line, and if residential, was the line primarily used as a business line; (2) did 

the class member receive a prerecorded or “Press 1” message and did the message actually play; 

and (3) does the class member have standing.13 

1. Key Threshold Issues Will Predominate in Determining Which Class 

Members Qualify for the Waiver 

In addition to the questions previously identified in ViSalus’ decertification briefing, the 

FCC Order creates numerous additional threshold issues that predominate merely to determine 

which class members fall within the waiver provided by the FCC. For example, for each 

individual class member, questions will include, without limitation: (1) what was the date and 

 13 Mot. to Decertify at 7–25; Dkt. 323, Reply to Motion to Decertify at 5–9, 13–19. 

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time of the alleged prerecorded or “Press 1” message from several years ago; (2) for class 

members who provided more than one telephone number, which phone number received the 

call;

14 (3) was the call received before October 7, 2015; (4) did the class member submit an 

enrollment application to ViSalus before October 16, 2013; and (5) did the promoter or customer 

opt out before the alleged call. Thus, determining whether the waiver may apply to each class 

member is wrought with individual issues. 

2. Thousands of Individual Issues Predominate on Consent

The issue of whether ViSalus obtained “prior express consent” alone raises a myriad of 

individualized issues based on variation in customer and promoter enrollment forms and 

communication preferences that may have been contained therein. While ViSalus does not 

concede that these issues are relevant to a determination of consent—as the “prior express 

consent” standard under the TCPA is satisfied by the class members’ voluntary provision of their 

phone numbers to ViSalus—Plaintiff has argued otherwise.15 But even assuming arguendo that 

these issues are relevant, the class must still be decertified on the basis that innumerable 

individual inquiries on consent will predominate. 

Additional individual questions related to consent include, without limitation: (6) did the 

class member enroll as a customer or a promoter; (7) was the enrollment online or via paper 

application; (8) which version of the enrollment application did the class member submit; (9) 

which communication preferences (if any) did the class member provide; (10) did the class 

member change their communication preferences after enrollment; and (11) if so, what 

communication changes did they make and were the changes made before the alleged call; (11)

did the class member reenroll; and (12) if so, when, how and what application form, along with 

any communication preferences, was submitted for reenrollment. Each of these individual 

 

14 Declaration of Scott Gidley (“Gidley Decl.”) ¶ 8, Exs. 16, 20, 27, and 30.

15 See Dkt. 322, Pl.’s Notice Regarding the FCC’s Order on ViSalus’ Petition for Waiver, at 3 

(“ViSalus has no evidence that even a single class member checked the [“Receive ViSalus News 

& Updates by Phone” box], much less before October 2013.”).

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questions would need to be answered for each class member based on their individual 

circumstances, as explained below. 

First, one would need to determine whether the class member enrolled online, by 

telephone, or via paper application. A determination of this preliminary question could require a 

manual review of class member accounts and thousands of completed paper applications.

16 

Second, while class members voluntarily provided their telephone numbers to ViSalus

while enrolling online, it is unknown whether members who enrolled online before October 16, 

2013 were presented with communication preferences, whether they checked any 

communication preference boxes, or what the content of any boxes may have contained.17 By 

way of example, the current online enrollment process for promoters and customers contains a 

checkbox to receive SMS text messages.18 

This will result in an individualized inquiry on the issue of consent, on which each class 

member who enrolled online would need to be individually examined. See Smith v. Microsoft 

Corp., 297 F.R.D. 464, 471 (S.D. Cal. 2014) (individualized issues of consent predominate 

where that information “simply no longer exists” in the defendant’s records); Gene & Gene LLC 

v. BioPay LLC, 541 F.3d 318, 328–29 (5th Cir. 2018) (certification denied on predominance 

grounds where employee testimony showed that defendant’s “database entries do not 

consistently or accurately reflect whether a given recipient had consented” to faxes); Jamison v. 

First Credit Services, Inc., 290 F.R.D. 92, 107 (N.D. Ill. 2013) (certification denied on 

predominance grounds where affidavit from defendant employee explained issues with consent 

tracking through defendant’s account record system). For some class members, the online 

enrollment process may date back as far as early 2006. 

 

16 Gidley Decl. at ¶ 4; Dkt. 271-1, Joint Stip. at ¶ 6. 

17 Declaration of . Aldo Moreno (“Moreno Decl.”) at ¶ 4.

18 Gidley Decl. at ¶ 6, Ex. 33 (screenshots of current enrollment process).

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Third, a determination would need to be made as to whether the class member enrolled as 

a promoter or customer given that, at a minimum, the paper enrollment applications differed 

between promoters and customers as well as within the same group. Some (but not all) paper 

enrollment forms for promoters that are members of the class and enrolled prior to October 16, 

2013 included four checkboxes (phone, email, text message or none) for “Receiv[ing] ViSalus 

News & Updates.”19 Below is a sample of such a promoter application:

Other promoter applications for members of the class who enrolled prior to October 16, 2013 did 

not contain any checkboxes at all.

20

Paper applications for customers before October 16, 2013 also varied. In fact, there was 

significant variation in customer applications over time. Some (but not all) paper enrollment 

forms for customers that are members of the class and enrolled prior to October 16, 2013 

included the same four checkboxes (phone, email, text message or none) as above.21 Other paper 

enrollment forms for customers that are members of the class and enrolled prior to October 16, 

2013 contained only one checkbox stating, “Yes, I would like to receive communications from 

ViSalus regarding special discounts and promotions.”22 Below is a sample of such a customer 

 

19 Gidley Decl. at ¶ 9, Exs. 2, 3, 11, 15, 16, 20, 22, 27, 28, 30, and 32. 

20 Gidley Decl. at ¶ 10, Ex. 34 (attaching promoter application with no checkboxes but an 

asterisk next to “*Cellular Phone” that states “Cellular numbers will receive ViSalus Mobile 

updates”). 

21 Gidley Decl. at ¶ 11, Ex. 29. 

22 Gidley Decl. at ¶ 12, Ex. 1, 4-10, 12-14, 17-19, 21, 23-26.

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application:

Still other paper enrollment forms for customers that are members of the class and enrolled prior 

to October 16, 2013 had no checkboxes or communication preferences at all.

23 

Simply put, promoters and customers “consented through a variety of different forms, 

completed in unique ways at different times.” Sandusky Wellness Center, LLC v. ASD Specialty 

Healthcare, Inc., No. 3:13-CV-2085, 2016 WL 75535, at *4 (N.D. Ohio Jan. 7, 2016) (denying 

class certification on predominance grounds). 

Fourth, regardless of whether the communication preferences are relevant, it cannot be 

disputed that some class members provided prior express consent to be called and thus have no 

claim. Specifically, some promoters who enrolled via paper application prior to October 16, 

2013, voluntarily provided mobile and/or “home” phone numbers and manually checked the box 

to receive “phone” calls from ViSalus regarding news and updates.

24 Similarly, some customers 

who signed up prior to October 16, 2013, voluntarily provided a “daytime phone #”25 and 

manually checked the box to receive communications from ViSalus with special discounts and 

 

23 Gidley Decl. at ¶ 13, Ex. 35.

24 Gidley Decl. at ¶ 9, Exs. 2, 3, 11, 15, 16, 20, 22, 27, 28, 30, and 32. 

25 Notably, the customer enrollment form only asks for a “Daytime phone #.”

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promotions.

26 ViSalus has produced over 30 examples of consent from members of the class.27 

See NEI Contracting & Engr., Inc. v. Hanson Aggregates, Inc., 12-CV-01685-BAS(JLB), 2016 

WL 2610107, at *7 (S.D. Cal. May 6, 2016), aff'd sub nom. NEI Contracting & Engr., Inc. v. 

Hanson Aggregates Pac. Sw., Inc., 2019 WL 2361800 (9th Cir. June 5, 2019) (decertification on 

predominance grounds granted where defendant presented nine examples of consent). 

Thus, even assuming arguendo that the checkboxes on the enrollment forms are relevant 

to the issue of consent (which ViSalus does not concede), customers and promoters who—prior 

to October 16, 2013—voluntarily provided their phone numbers to ViSalus and checked these 

boxes on enrollment applications clearly provided the requisite consent.28 But it is impossible to 

determine which boxes may have been selected without manually cross-checking enrollment 

applications and the class list, which contains over 850,000 members. To the extent applications 

no longer exist, the only way to determine consent is to examine each class member. This is a 

textbook case of the predominance of individual consent issues. 

Fifth, several other individual inquiries predominate. Class members who enrolled prior 

to October 16, 2013 may have changed their communication preferences before receiving any 

call from ViSalus, by accessing their ViNet account online or by calling customer service.

29 For 

example, a promoter or customer who had not checked the “phone” box during enrollment may 

 

26 Gidley Decl. at ¶ 12, Exs. 1, 4-10, 12-14, 17-19, 21, 23-26.

27 Additional consent samples could be provided, upon request, by continuing the tedious and 

time-consuming task of manually checking thousands of application forms against the KCC 

Class List. Haule Decl. ¶ 7. The samples have been redacted due to confidential information. 

ViSalus can produce unredacted versions (as well as additional samples) at the Court’s request. 

28 Plaintiff previously contended that ViSalus cannot present a “prior express consent” defense 

because ViSalus did not raise such a defense. See Dkt. 322 at 5-6. Even if Plaintiff were correct, 

this argument fails for at least two additional reasons. First, this argument is inherently flawed 

because a litigant cannot waive Article III’s requirements. See Bender v. Williamsport Area 

School Dist., 475 U.S. 534, 541–42 (1986) (holding that issues of Article III standing are treated 

as jurisdictional and must be considered by the court). Second, because the FCC Waiver Order 

did not exist until just two weeks ago, ViSalus could not have raised a “prior express consent” 

defense previously without potentially violating the Federal Rules of Civil Procedure.

29 Gidley Decl. at ¶ 15, Ex. 36 (sample “Company Communications” page on ViNet).

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have subsequently changed their preferences under the “Company Communications” page of 

their online account.

30 Other class members may have cancelled their accounts and reenrolled at 

a later date with different communication preferences prior to the date of any prerecorded call.31 

Still other class members may have been called on a different phone number than reflected on 

their enrollment form because they subsequently changed their telephone number.

32 An inquiry 

would need to be undertaken to establish that these class members gave prior express consent to 

be called on the new telephone number.33 All of these considerations would require a manual 

review of each class member account and examinations of each class member to determine 

whether they provided prior express consent. The process would be completely unmanageable.

In short, individualized issues of consent predominate. Numerous courts have decertified 

or refused to certify class actions in TCPA cases where individual issues of consent predominate 

after a retroactive waiver is granted by the FCC. See, e.g., Simon, 2015 WL 10015953, at *7

(retroactive FCC waiver created individualized consent issues defeating class certification); 

Brodsky, 269 F. Supp. 3d at 846 (decertification warranted where retroactive waiver from FCC 

created individualized issues of consent). See also Sandusky Wellness Center, LLC v. ASD 

Specialty Healthcare, Inc., 863 F.3d 460, 465–66 (6th Cir. 2017) (affirming district court order 

denying class certification, in part, because individualized issues of consent predominated after 

retroactive waiver from FCC). 

Brodsky is squarely on point. In Brodsky, after a class was certified, the defendant 

obtained a retroactive waiver from the FCC concerning the TCPA’s Solicited Fax Rule. The 

Solicited Fax Rule provided that fax advertisements sent with “prior express invitation or 

 

30 Gidley Decl. at ¶ 15.

31 Gidley Decl. at ¶ 16, Exs. 2, 20, 28, and 30 (samples of customer and promoter reactivations).

32 Moreno Decl. at ¶ 3 (some class members changed their telephone numbers after enrollment 

through their online account or by calling customer service). 

33 This would also require determining when and on what telephone number the class member 

was called—facts which were not established for each class member at trial.

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permission”34 (i.e., solicited faxes) must have opt-out notices. In light of the FCC waiver, a 

primary issue in the case was whether the faxes were sent with prior express invitation or 

permission. Defendant moved to decertify the class. In granting the motion and finding that 

issues of individualized consent predominated, the court noted various “outstanding questions” 

and “complicated individualized questions,” including whether members of the class may have 

revoked consent. 269 F. Supp. at 846, 849. The court concluded that the case “will be 

consumed and overwhelmed by testimony from each individual class member in an effort to 

determine whether the class member consented to receive the [messages] in question.” Id. at 846 

(internal quotations and citations omitted). Here, like in Brodsky, “[n]ow that ‘the issue of 

consent’ is back in ‘the equation’ by virtue of the [June 13, 2019 FCC Waiver], the present class 

must be decertified.” Id. at 848. 

Similarly, in Simon v. Healthways, Inc., No. CV 14-08022-BRO (JCx), 2015 WL 

10015953, at *2 (C.D. Cal. Dec. 17, 2015), the defendant was also granted a retroactive waiver 

from the FCC on the Solicited Fax Rule. The retroactive waiver excused the defendant from 

providing opt-out notice on fax advertisements if the defendant had prior express permission. 

Thus, consent was a primary issue in the case. The defendant furnished examples of potential 

class members that may have provided consent. Id. at *5. The court noted the various ways 

class members could have consented—“in paper, online, or a combination of both, further 

highlighting the individualized inquiry that would need to take place.” Id. The court concluded 

that the “key issue” of consent required an individualized analysis that defeated class 

certification. Id. at *4. 

[P]rior express permission is a critical—and individualized—issue in this class action. 

The Court cannot and will not engage in hundreds of mini-trials to determine whether a 

putative class member provided Defendants his or her or its prior express permission. 

Accordingly, the Court finds that [this] class action is not superior to individual suits as a 

 

34 See 47 C.F.R. § 64.1200(a)(4)(iv) (2013) (previous rule providing that fax advertisements sent 

with “prior express invitation or permission” must be include an opt-out notice). This 

requirement—the Solicited Fax Rule—was stuck down and removed from the FCC regulations. 

See Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078, 1083 (D.C. Cir. 2017). 

Case 3:15-cv-01857-SI Document 327 Filed 06/28/19 Page 19 of 23
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means to adjudicate this dispute; putative class members may seek recovery in small 

claims court.

Id. at *7–8. See also Smith, 297 F.R.D. at 469 (“[A]n alternative method of handling the instant 

controversy exists: namely, individual plaintiffs may bring TCPA cases in small claims court 

without an attorney.”).

Based on the above, individual issues not only predominate, but overwhelm common 

questions. Whether ViSalus obtained prior express consent from class members will require this 

Court to examine each and every class members’ unique circumstances, including without 

limitation, whether they enrolled as a promoter or customer, whether they enrolled online or via 

paper application, which application version they filled out and when, and what communication 

preferences (if any) they provided on these applications. Moreover, although ViSalus believes 

that all class members subject to the waiver provided prior express consent regardless of any 

communication preferences, it has nonetheless produced evidence showing that, without 

question, some class members provided prior express consent and therefore have no claim under 

the TCPA.35 

It is clear—now more than ever—that the class must be decertified. Sandusky, 2016 WL 

75535, at *4 (class certification “inappropriate” where defendant “presented evidence that some 

fax advertisements were solicited, but identifying those recipients who consented to receiving 

faxes is a case-by-case analysis” especially where “customers consented through a variety of 

different forms, completed in unique ways at different times”), aff’d 863 F.3d 460 (6th Cir. 

2017), as corrected on denial of reh’g en banc (Sept. 1.2017); Katz v. Am. Honda Motor Co., No. 

15-CV-4410-CBM-RAOX, 2017 WL 3084272, at *4 (C.D. Cal. June 29, 2017) (class 

certification inappropriate where individualized inquiry required to determine whether each class 

member signed a lease agreement, which version they signed and when, what language was 

contained in the agreement, and when the call was made); Sherman v. Yahoo! Inc., No. 

13CV0041-GPC-WVG, 2015 WL 5604400, at *10 (S.D. Cal. Sept. 23, 2015) (class certification 

 35 See supra notes 24, 26. 

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inappropriate where defendant demonstrated varying methods of expressing consent, which 

would require an individualized inquiry into the consent profile of each class member).

Plaintiff has failed to advance—nor can she—“a viable theory of generalized proof to 

identify those persons, if any, to whom [ViSalus] may be liable under the TCPA.” Id. (quoting 

Gene and Gene, 541 F.3d at 327–29). See also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 

350 (2011) (“What matters to class certification ... is not the raising of common questions—even 

in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to 

drive the resolution of the litigation.”) (emphasis in original) (quotation and citation omitted). 

“This seems to be the exact type of case that would devolve into a series of mini-trials, which 

Rule 23(b)(3) seeks to prevent.” Sandusky, 2016 WL 75535, at *4.

C. Plaintiff’s Claims are Not Typical of the Class Because She Lacks Standing 

and Proof of Her Claim Does Not Resolve the Class Claims 

A plaintiff who lacks standing is not typical of the class and cannot serve as a class 

representative. See Summer York v. Starbucks Corp., No. CV0807919GAFPJWX, 2012 WL 

12507388, at *6 (C.D. Cal. Nov. 1, 2012) (decertification proper where named plaintiff lacks 

standing); see also Prado–Steiman v. Prado, 221 F.3d 1266, 1280 (11th Cir. 2000) (standing 

falls within the umbrella of typicality, and a plaintiff who lacks standing is not typical of the 

class and cannot serve as the class representative). See also Lierboe, 350 F.3d at 1022–23. As 

demonstrated above, Plaintiff lacks standing to sue because she provided prior express consent. 

Because Plaintiff lacks standing to pursue her individual claim, she is not typical of the class.

In addition, and again assuming arguendo that the enrollment preferences are relevant to 

a determination of consent (which ViSalus disputes), Plaintiff is not typical of class members 

who checked the “phone” box to receive calls from ViSalus, either at the time of enrollment or

thereafter. Nor is Plaintiff typical of class members who, without limitation: (i) provided more 

than one phone number to ViSalus, (ii) provided consent after October 16, 2013, (iii) opted out 

before any alleged call, (iv) received the alleged call after October 7, 2015; (v) enrolled using a 

paper application; (vi) enrolled with a different version of the online application; (vii) changed 

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their communication preferences after enrollment; and/or (viii) reenrolled. Proof of Plaintiff’s 

claim does not resolve the class claims and thus Plaintiff cannot demonstrate that her claim is 

typical of the class. See Gen. Tel. Cov. Of Sw. v. Falcon, 457 U.S. 147, 159 (1982).

D. Plaintiff Fails to Prove Numerosity

As demonstrated in ViSalus’ briefing on decertification, to establish numerosity, Plaintiff 

must provide a reasonable estimate of the class size supported by “reliable evidence.” See, e.g., 

Dkt. 306 at 28-29 (citing cases including Smith v. City of Corvallis, No. 6:14-cv-01382, 2016 

WL 3193190, at *10 (D. Or. June 6, 2016)). In addition to the reasons set forth in ViSalus’ prior 

briefing, Plaintiff has not provided, nor can she provide, a reasonable estimate of the class size in 

light of the FCC Waiver, as she has failed to present any evidence, let alone reliable evidence, of 

the number of individuals from whom ViSalus did not have prior express consent. Thus, 

Plaintiff has not carried her burden of demonstrating numerosity. 

E. Class Treatment is Not Superior or Manageable Given the Thousands of

Mini-Trials That are Necessary to Determine Prior Express Consent

Rule 23(b)(3)(D) requires a court to consider the likely difficulties in managing a class 

action when evaluating whether class action treatment is superior to other methods of 

adjudication. See Dkt. 306 at 25 (citing Fed. R. Civ. P. 23(b)(3)(D)). The greater number of 

individual issues to be litigated, the greater difficulties in managing the class. Id. Given the 

individualized nature of the inquiries on prior express consent that are now necessary in the wake 

of the FCC Waiver Order (see above Section III.B), Plaintiff’s failure to provide common proof 

on the class claims will result in hundreds of thousands of mini-trials. Thus, a class action is 

neither manageable nor superior. Id. (citing Burrell v. Crown Cent. Petrol., Inc., 197 F.R.D. 

284, 291 (E.D. Tex. 2000)). Accordingly, the class must be decertified. Wal-Mart, 564 U.S. at

347-49.

IV. CONCLUSION

For these additional reasons and for those previously stated, ViSalus’ Motion to Decertify 

the Class should be granted and the class decertified. The Court should dismiss the class claims 

Case 3:15-cv-01857-SI Document 327 Filed 06/28/19 Page 22 of 23
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and proceed to judgment on Plaintiff’s individual claims. 

Dated: June 28, 2019 MANATT, PHELPS & PHILLIPS, LLP

By: /s/ Christine M. Reilly

CHRISTINE M. REILLY

Attorneys for Defendant

VISALUS, INC.

John W. McGuinness (pro hac vice)

jmcguinness@manatt.com 

MANATT, PHELPS & PHILLIPS LLP 

11355 W. Olympic Blvd 

Los Angeles, CA 90064

Telephone: 310.312.4000

Facsimile: 310.312.4224

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

josh.sasaki@millernash.com 

Nicholas H. Pyle, OSB No. 165175

nicholas.pyle@millernash.com MILLER NASH GRAHAM & DUNN LLP

3400 U.S. Bancorp Tower

111 S.W. Fifth Avenue

Portland, Oregon 97204

Telephone: 503.224.5858

Facsimile: 503.224.0155

John Maston O’Neal (pro hac vice)

john.oneal@quarles.com

Zachary S. Foster (pro hac vice)

zachary.foster@quarles.com 

QUARLES & BRADY LLP

Two N. Central Avenue

One Renaissance Square

Phoenix, Arizona 85004-2391

Telephone: 602.229.5200

Facsimile: 602.229.5690

Case 3:15-cv-01857-SI Document 327 Filed 06/28/19 Page 23 of 23