DOVEL & LUNER, LLP

Simon Franzini, Cal. Bar #287631*

simon@dovel.com

Gregory S. Dovel, Cal. Bar #135387*

greg@dovel.com

Jonas Jacobson, Cal. Bar #269912*

jonas@dovel.com

201 Santa Monica Blvd., Suite 600

Santa Monica, California 90401

Tel: (310) 656-7066

Fax: (310) 656-7069

(additional counsel listed on next page)

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

LORI WAKEFIELD, individually and 

on behalf of a class of others similarly 

situated, 

 Plaintiff,

 v.

VISALUS, INC.,

a Nevada corporation,

 Defendant.

No. 3:15-cv-01857-SI

Ms. Wakefield’s position statement 

regarding verdict form

Case 3:15-cv-01857-SI Document 264 Filed 04/04/19 Page 1 of 8
EDELSON PC

Rafey S. Balabanian, ILB #6285687*

rbalabanian@edelson.com

Eve-Lynn J. Rapp, ILB #6300632*

erapp@edelson.com

Lily E. Hough, SBN #315277*

lhough@edelson.com

123 Townsend Street, Suite 100

San Francisco, California 94107

Tel: (415) 212-9300

Fax: (415) 373-9435

FORUM LAW GROUP

Scott F. Kocher, OSB #015088

Stephen J. Voorhees, OSB #150595

811 S.W. Naito Parkway, Suite 420

Portland, Oregon 97204

Tel/Fax: (503) 445-2120

* admitted pro hac vice

Attorneys for Plaintiff Wakefield and the Certified Class

Case 3:15-cv-01857-SI Document 264 Filed 04/04/19 Page 2 of 8
Plaintiff’s position statement regarding verdict form 1

The verdict form should ask the jury to adjudicate the absent class members’ 

claims, regardless of how it decides Ms. Wakefield’s individual claims. 1

There is no need for Ms. Wakefield to prevail on her individual claims in order to 

prevail on behalf of the class. Under controlling Ninth Circuit law, “‘[f]ailure of proof as 

to the named plaintiffs would not bar maintenance of the class action or entry of 

judgment awarding relief to the members of the class.’” Harmsen v. Smith, 693 F.2d 932, 

942-43 (9th Cir. 1982) (quoting Gibson v. Local 40, Supercargoes & Checkers, Etc., 543 

F.2d 1259, 1263 (9th Cir. 1976). “The disposition of the adjudicated claims of a properly 

certified class is not affected by the ultimate disposition of the individual claim of the 

named representative.” Bernard v. City of Palo Alto, 699 F.2d 1023, 1026 (9th Cir. 

1983); see East Texas Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 406 n.12 

(1977) (if a case is tried as a class action, “the claims of the class members would not 

need to be mooted or destroyed because subsequent events or the proof at trial had 

undermined the named plaintiffs’ individual claims”); Sosna v. Iowa, 419 U.S. 393, 399, 

95 S. Ct. 553, 557 (1975) (“When the District Court certified the propriety of the class 

action, the class of unnamed persons described in the certification acquired a legal status 

separate from the interest asserted by appellant.”)

Thus, the jury can adjudicate the absent class members’ claims, regardless of how 

it decides Ms. Wakefield’s. And as shown below, asking it to do so will preserve judicial 

and jury resources. 

 1 At the pretrial conference, the Court granted Ms. Wakefield leave to file a 

position statement addressing this topic by today. 

Case 3:15-cv-01857-SI Document 264 Filed 04/04/19 Page 3 of 8
Plaintiff’s position statement regarding verdict form 2

A. Under controlling law, a class representative may prevail on behalf of 

absent class members even if her own claims fail or are mooted. 

The Ninth Circuit has repeatedly held that class claims can go forward even if the 

class representatives’ claims fail. 

In Harmsen, a securities class action, the jury found against the named plaintiffs 

because the named plaintiffs bought their stock before the relevant fraud began (as found 

by the jury). Harmsen v. Smith, 693 F.2d 932, 942 (9th Cir. 1982). But the jury did find 

the defendant liable to class members who “who bought their shares after” the fraud 

began. Id. The district court entered judgment on behalf of the class. The Defendant 

appealed, arguing that because the class representatives lost on their individual claims, 

the class claims necessarily failed. The Ninth Circuit expressly rejected this argument. It 

held that the failure of the class representatives’ individual claims “would not bar entry of 

judgment awarding relief to the members of the class.” Id. at 943.

As a second example, in Bernard, the named plaintiff brought a class action 

challenging Palo Alto’s policy of incarcerating arrested individuals for more than 48 

hours without a warrant or a determination of probable cause by a magistrate. Bernard v. 

Palo Alto, 699 F.2d 1023, 1024 (9th Cir. 1983). The district court granted partial 

summary judgment on behalf of the class. Id. On appeal, Palo Alto argued that the class 

representative Bernard’s individual claim failed because “probable cause for Bernard’s 

detention had been established before his arrest.” Id. at 26. It argued that, as a result, the 

class claims necessarily failed as well. Id. 

The Ninth Circuit expressly rejected this argument. It explained: “The disposition 

of the adjudicated claims of a properly certified class is not affected by the ultimate 

Case 3:15-cv-01857-SI Document 264 Filed 04/04/19 Page 4 of 8
Plaintiff’s position statement regarding verdict form 3

disposition of the individual claim of the named representative.” Id. Accordingly, 

“[e]ven if Bernard was not entitled to summary judgment, however, the class action and 

resulting remedial order would not be vitiated.” Id.; see Bates v. UPS, 511 F.3d 974, 986 

(9th Cir. 2007) (en banc) (“Even if UPS is correct that Oloyede [the class 

representative]’s claim is either not redressable or is moot because he is no longer in a 

driver-eligible position, questions we do not decide, the remaining class members are not 

foreclosed from attaining relief since the class was long ago duly certified.”). 

The Seventh circuit reached the same result in the recent Bridgeview Healthcare 

Center, Ltd. v. Clark case, involving a different subsection of the TCPA. 816 F.3d 935, 

937 (7th Cir. 2016). There, Bridgeview filed a class action on behalf of recipients of 

illegal, unsolicited fax ads. See 47 U.S.C. § 227(b)(3). The court found that the 

defendant was liable certain absent class members, but not to the class representative 

Bridgeview. (The faxes were sent by a third party marketing company, and the defendant 

had never authorized the fax that was sent to the class representative. Bridgeview, 816 

F.3d 937.) 

On appeal, the defendant argued that the judgement against the absent class 

members should be vacated because it was not liable to the class representative. 

Bridgeview Health Care Ctr., Ltd. v. Clark, 816 F.3d 935, 941 (7th Cir. 2016). The 

Seventh Circuit rejected this argument. Citing East Texas, it held: “because ‘the proof at 

trial had undermined’ Bridgeview's claims, the Supreme Court's language [in East Texas] 

directly applies.” Bridgeview Health Care Ctr., Ltd. v. Clark, 816 F.3d 935, 942 (7th Cir. 

Case 3:15-cv-01857-SI Document 264 Filed 04/04/19 Page 5 of 8
Plaintiff’s position statement regarding verdict form 4

2016). Accordingly, the Seventh Circuit affirmed the judgment in favor of the absent 

class members. Id. 

Rule 23 requires this result. As the Ninth Circuit has held, intra-class factual 

variability does not preclude certification under Rule 23(b)(3). See Hanlon v. Chrysler 

Corp., 150 F.3d 1011, 1019 (9th Cir. 1998) (“All questions of fact and law need not be 

common to satisfy the rule. The existence of shared legal issues with divergent factual 

predicates is sufficient, as is a common core of salient facts couple with disparate legal 

remedies within a class.”). Indeed, the text of Rule 23(b)(3), which requires only that 

common questions predominate over individual questions, contemplates the existence of 

individual questions in a money-damages class action. See Tyson Foods, Inc. v. 

Bouaphakeo, 136 S. Ct. 1036, 1045 (2016). Inherent in the very possibility of factual 

variability is that the named plaintiff may lose (perhaps on an individual question 

affecting her case) while still convincing the jury of enough facts to permit absent class 

members to recover. As a result, those absent class members are not precluded from 

enjoying the fruits of the representative plaintiff’s labor, even though the representative 

plaintiff loses her individual claim.

B. Asking the jury to adjudicate the class claims will preserve judicial and 

jury resources. 

At trial, the jury will hear not just Ms. Wakefield’s evidence, but also the classwide evidence. Accordingly, the jury will be in a position to adjudicate the class claims 

at the close of the evidence, without the need to hear any additional evidence. 

If the jury is told to adjudicate the class claims regardless of whether it finds for 

Ms. Wakefield on her individual claims, then we will have the benefit of the jury’s 

Case 3:15-cv-01857-SI Document 264 Filed 04/04/19 Page 6 of 8
Plaintiff’s position statement regarding verdict form 5

verdict on the class claims. The Court can then afford the parties a full opportunity to 

brief this issue, and make a decision based on a complete record. If, in contrast, the jury 

is told now not to decide the class claims if it finds against Ms. Wakefield on her 

individual claim, and the jury does that, we cannot go backwards without calling a new 

jury and re-trying the class claims. 

Accordingly, for this second reason, the verdict form should ask the jury to 

adjudicate the absent class members’ claims, regardless of how it decides Ms. 

Wakefield’s. 

Date: April 4, 2019 Respectfully submitted,

By: /s/ Simon Franzini

DOVEL & LUNER, LLP

Simon Franzini, Cal. Bar #287631*

simon@dovel.com

Gregory S. Dovel, Cal. Bar #135387*

greg@dovel.com

Jonas Jacobson, Cal. Bar #269912*

jonas@dovel.com

201 Santa Monica Blvd., Suite 600

Santa Monica, California 90401

Tel: (310) 656-7066

Fax: (310) 656-7069

EDELSON PC

Rafey S. Balabanian, ILB #6285687*

rbalabanian@edelson.com

Eve-Lynn J. Rapp, ILB #6300632*

erapp@edelson.com

Lily E. Hough, SBN #315277*

lhough@edelson.com

123 Townsend Street, Suite 100

San Francisco, California 94107

Case 3:15-cv-01857-SI Document 264 Filed 04/04/19 Page 7 of 8
Plaintiff’s position statement regarding verdict form 6

Tel: (415) 212-9300

Fax: (415) 373-9435

FORUM LAW GROUP

Scott F. Kocher, OSB #015088

Stephen J. Voorhees, OSB #150595

811 S.W. Naito Parkway, Suite 420

Portland, Oregon 97204

Tel/Fax: (503) 445-2120

* admitted pro hac vice

Attorneys for Plaintiff Wakefield and the 

Certified Class

Case 3:15-cv-01857-SI Document 264 Filed 04/04/19 Page 8 of 8