EXHIBIT 1

(to Plaintiff's Motion for Attorney's Fees and 

an Incentive Award)

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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

Declaration of Eve-Lynn Rapp

1. My name is Eve-Lynn Rapp. I am a Partner at Edelson PC, counsel of record for 

Plaintiff and Class Counsel in the above-captioned matter. I make the following declaration in 

support of Plaintiff’s Motion for an Award of Attorney’s Fees and an Incentive Award.

2. I have litigated dozens of TCPA cases. In my opinion, discovery in this case was 

unusually complex because of issues raised by Defendant ViSalus, Inc. regarding its relationship 

with callers. In most TCPA cases, the only significant issue to be explored in discovery is the 

nature of the dialing equipment used by the defendant. 

3. Discovery itself was particularly contentious. First, at the outset, the Parties 

disagreed about whether the discovery should be bifurcated or proceed on class and merits issues 

simultaneously. Defendants also argued (unsuccessfully), that discovery should be stayed based 

on the then pending Supreme Court ruling in Spokeo Inc. v. Robins. After issuing various written 

discovery requests, my team further had a number of issues with the way ViSalus produced 

documents and objected to document requests or interrogatories. For example, ViSalus initially 

refused to produce information relevant to class certification related to the technology used to 

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place the calls, the source of the dialed numbers, call recordings, the identity of the individuals 

whose phone numbers were dialed, and policies related to records of consent and stop calling 

requests. These disputes were resolved only after multiple meet and confer efforts. Plaintiff was 

also required to address deficiencies in ViSalus’s production related to the identification of 

corporate representatives and previously filed lawsuits and complaints. 

4. All in all, during the discovery phase of this case, attorneys at my firm issued two 

separate sets of interrogatories (with 17 total interrogatories) and 37 requests for production, 

responded to 30 written discovery requests, took three depositions, two of ViSalus employees, 

and one of an individual designated by ViSalus to speak on 12 topics. We reviewed thousands of 

documents produced by ViSalus. 265 pages of documents were Bates stamped, and ViSalus then 

produced dozens of folders containing other discovery material, including additional wordprocessed documents, several dozen audio files (which were featured on calls placed by ViSalus 

or its agents), and nearly 3,000 spreadsheets, which ViSalus represented were reports of all calls 

placed by ViSalus during the relevant time frame. All in all, ViSalus produced 4 gigabytes worth 

of discovery material for my team to comb through.

5. On behalf of the class, my firm also issued third-party subpoenas to Molalla 

Communications and AT & T in order to obtain Lori Wakefield’s phone records and ViSalus’s 

phone records (or at least, phone records from certain phone numbers that we had determined, 

through discovery, had been used by ViSalus to place the phone calls at issue).

6. Following class certification, attorneys at my firm once again engaged defense 

counsel as we worked to determine what of the discovery received so far would apply to the 

certified class. (Since we had proposed three classes, we had issued discovery relevant to all 

three classes, some of which became irrelevant after the Court’s class certification order.) 

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Through an extensive meet and confer process, and a fourth deposition of a ViSalus witness, we 

compiled a group of spreadsheets that, the parties stipulated, corresponded to the certified 

class—i.e., were of calls promoting ViSalus products to persons in the United States. 

7. Given the variety of ways in which ViSalus had compiled data, I then tasked a 

technologist on staff here at Edelson PC with writing a computer script that would compile the 

data into usable form, both for notice purposes and trial purposes. During this process, my firm 

also subpoenaed Avaya, the manufacturer of the device used by ViSalus to place calls, in order 

to obtain information that would allow us to understand the activity logs available to ViSalus 

which would be pertinent to gathering information about the class members and the calls that 

were placed to them.

8. When the Court granted our notice proposal in part (Dkt. 106), it instructed us to 

remove from our list any phone calls which did not go through, or in which no recorded voice 

played. We then worked with ViSalus to obtain a declaration to illuminate the meaning of 

various disposition codes found in ViSalus’s records vis-à-vis the outcome of each call. We used 

this declaration to revise our list in order to comply with the Court’s order. 

9. In my opinion, litigating this case through trial was especially risky, particularly 

in light of unfavorable precedent from the Fifth Circuit dealing with robocalls. In fact, we tried 

several times to settle the case before trial, in light of both this precedent and our understanding 

that trial is inherently risky.

10. To date, my firm has fronted $70,705.17 in ordinary litigation expenses, and an 

additional $229,501.34 to give notice of class certification to the class. We will front the cost of 

notice again now that a judgment has been entered.

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I declare under penalty of perjury that the foregoing is true and correct. Executed on September 

10, 2020, at Niwot, Colorado.

s/ Eve-Lynn Rapp

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