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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

LORI WAKEFIELD, individually )

and on behalf of all others )

similarly situated, )

 ) 

 Plaintiff, ) Case No. 3:15-cv-01857-BR 

 ) 

 v. ) 

 ) June 26, 2018 

VISALUS, INC., a Nevada )

corporation, )

 ) 

 Defendant. ) Portland, Oregon 

________________________________) 

TELEPHONIC STATUS CONFERENCE 

TRANSCRIPT OF PROCEEDINGS 

BEFORE THE HONORABLE ANNA J. BROWN 

UNITED STATES DISTRICT COURT SENIOR JUDGE 

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Case 3:15-cv-01857-SI Document 127 Filed 07/03/18 Page 1 of 12
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APPEARANCES 

FOR THE PLAINTIFF: 

 EVE-LYNN J. RAPP 

 Edelson PC 

 350 North LaSalle Street 

 Suite 1300 

 Chicago, IL 60654 

FOR THE PLAINTIFF: 

 LILY E. HOUGH 

 Edelson PC 

 123 Townsend Street 

 Suite 100 

 San Francisco, CA 94107 

FOR THE PLAINTIFF: 

 STEPHEN JOSEPH VOORHEES 

 Forum Law Group 

 811 SW Naito Parkway 

 Suite 420 

 Portland, OR 97204 

FOR THE DEFENDANT: 

 SARAH R. ANCHORS 

 Quarles & Brady LLP 

 2 N. Central Avenue 

 Phoenix, AZ 85004 

FOR THE DEFENDANT: 

 JOSHUA M. SASAKI 

 Miller Nash Graham & Dunn LLP 

 111 SW Fifth Avenue 

 Suite 3400 

 Portland, OR 97204 

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Case 3:15-cv-01857-SI Document 127 Filed 07/03/18 Page 2 of 12
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FOR THE DEFENDANT: 

 NICHOLAS H. PYLE 

 Miller Nash Graham & Dunn LLP 

 111 SW Fifth Avenue 

 Suite 3400 

 Portland, OR 97204 

FOR THE DEFENDANT: 

 ZACHARY S. FOSTER 

 Quarles & Brady LLP 

 101 E. Kennedy Boulevard 

 Suite 3400 

 Tampa, FL 33602 

COURT REPORTER: Jill L. Jessup, CSR, RMR, RDR, CRR, CRC 

 United States District Courthouse 

 1000 SW Third Avenue, Room 301 

 Portland, OR 97204 

 (503)326-8191 

* * * 

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Case 3:15-cv-01857-SI Document 127 Filed 07/03/18 Page 3 of 12
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TRANSCRIPT OF PROCEEDINGS 

(June 26, 2018) 

(Telephone conference.) 

THE COURT: All right. Good afternoon, Counsel.

It's Judge Brown. We are on the record in your case, Wakefield

against ViSalus. The point of this call is for me to review

with you what I'm going to say are, I think -- well, let me put

it this way: I think more work needs to be done with respect

to identifying and resolving particular issues and working

through the verdict form that you sent.

I'm not satisfied the pretrial order, as proposed, even

complies with our local rules because it's more a running

commentary about your ongoing conferrals and disputes. It

doesn't actually state claims or elements. It doesn't clarify

where we really are or a mechanism to resolve things. The

verdict form is really not usable in the manner you gave it to

me. 

So I think before giving you further direction on those

things, it would be helpful to figure out a motion process now

that will resolve the four issues you identified in the

transmittal correspondence to me, ahead of the status report,

specifically. Issue one you identified was the meaning of,

quote, "residential telephone," closed quote. Issue two is

whether the defendant is permitted to raise the affirmative

defense of consent and, if so, how the jury should be

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Case 3:15-cv-01857-SI Document 127 Filed 07/03/18 Page 4 of 12
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instructed on the issue. Issue three was the type of proof the

plaintiff must put forth to establish the claims of the

certified class. And issue four was whether plaintiff in the

certified class must establish that a prerecorded message was

left when an answering machine responded to the call in order

to prove their TCP claim in Count 2.

As I say, I've got several issues with the proposed form

of the pretrial order, and I simply can't adopt it in the form

given; but rather than spend your time fussing with that now, I

think we need to identify the motion mechanism to resolve these

four issues. And once those are resolved, I can give you more

specific direction on filing a new form of proposed pretrial

order and potential verdict form.

I've got a lot of issues; but one, for example, is that

the proposed pretrial order states the plaintiff intends to

proceed on only two claims, an individual claim by the

plaintiff for violating the Do Not Call Registry and a class

claim for violating the TCP, the Telephone Consumer Protection

Act, by initiating telemarketing calls with a prerecorded or

artificial voice to class members without express consent.

Nowhere in the pretrial order is there any reference to

the claim the plaintiff had previously brought for violating

Oregon stop calling statute.

When claims are not disposed of, there's an ambiguity in

the record that -- that is a source of confusion; so, among

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Case 3:15-cv-01857-SI Document 127 Filed 07/03/18 Page 5 of 12
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other things, the next form of pretrial order needs to clarify

what claims are going to the jury and what happened to the

other claims. Your -- your factual issues and proposed verdict

forms, I'll give you an -- another example of a problem.

You've stated in the pretrial order that a fact is agreed and

then you're asking the jury to make a finding of fact about

that question specifically on the claim for violating the

Do Not Call Registry. The first question on the verdict form

asks the jury to decide if the defendant initiated calls to

plaintiff at her number in April of 2015, but in the Agreed

Facts section of the pretrial order the parties seem to state

plaintiff received calls from defendant in April of 2015. Each

call was directed to the landline telephone that plaintiff

registered with the DNC register and the calls were placed for

marketing purposes.

So at least to me, as a reader, that seems confusing and

ultimately will need to be addressed. But right now I don't

want to belabor the point. I just want to express clearly that

the form of pretrial order that you proposed and the form of

verdict, which is an editorial comment that's virtually

undecipherable, needs way more work before you expect the Court

to make some decisions.

I want to talk to you about how to get to a procedural and

legal resolution of the four issues you've identified. The

first is, as I noted, the meaning of "residential telephone."

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Case 3:15-cv-01857-SI Document 127 Filed 07/03/18 Page 6 of 12
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It seems to me one way to address this is for a party to file a

motion asking for a jury instruction defining the term

"residential telephone" for purposes of whatever claim that

term is relevant to and then setting forth the legal argument

about the definition that party wants the Court it adopt, and

then an opposing party can file an opposing brief if there

isn't agreement, which I take it there isn't, since you've

listed it as an issue, explaining why the proponent's language

is wrong and setting forth in a cross-motion and type of

response what the argument ought to be and isolating that

single issue so we have some clear foundation on which a court

of appeals, in the end, can decipher what you proposed and what

the Court ruled; but, in the meantime, what -- I need a more

direct way to get to a solution on that. And so that's one way

to address the residential telephone issue.

The issue about the not pleaded affirmative defense of

consent, I think, needs to be raised, in light of its

significance here, by a motion to amend. 

So the defendant ought to, it seems to me, file a motion

to amend because the claim or the affirmative defense has not

been pleaded, and there's an argument about whether it should

go forward. So the standards relevant to amending need to be

identified and evaluated, and then the opposing party, the

plaintiff, can file a memorandum in opposition, and I can sort

through that, and we will have a very clear foundational record

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Case 3:15-cv-01857-SI Document 127 Filed 07/03/18 Page 7 of 12
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from which whatever ruling I make can be reviewed on appeal,

and it will resolve whether or not that issue gets put in the

next version of the pretrial order.

Both the issue about the type of proof the plaintiff has

to put forth to establish the claims of the certified class and

whether plaintiff and the class have to establish a prerecorded

message was left and so forth. I think those are matters that

could be best fleshed out in a motion in limine. Somebody has

to take the lead, and it seems to me the party who's trying to

limit the approach that plaintiff wants to take, i.e., the

defendant, should probably be the moving party, move in limine

to exclude whatever types of proof defendant contends are not

admissible to establish the claims of the class and a separate

motion in limine to -- to state the legal basis why a

prerecorded message left and when an answering machine

responded isn't sufficient and therefore shouldn't be allowed

by the plaintiff in the first place, something on that order.

So what I propose today is that we just ignore your

proposed pretrial order for now and your verdict form for now,

and I want you to come up with the most efficient way for us to

get to a clear record any correct legal ruling on these four

issues.

I've suggested, as I say, a jury instruction motion on the

first one, a motion to amend on the second, motions in limine

on the third and fourth, but I don't know if that's the way you

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Case 3:15-cv-01857-SI Document 127 Filed 07/03/18 Page 8 of 12
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want to do it.

I suggest that you all confer and send me a single joint

email message as to the mechanism you think is the most

efficient and direct to get to rulings on those issues,

together with a proposed calendar for that -- and I'm thinking

sooner rather than later, like the motions being filed in the

next week or two and responses and so forth -- so that I can

get to a place where those issues are resolved by ruling, and

then we can go back to a proposed form of pretrial order that

already has these issues resolved, and I can also give you more

specific guidance about the issues I have with what you've sent

in. 

So that's the point of today's call, is to express my

concern about those filings and to try to get us to a place

where we can make some forward progress on those issues.

And, as I say, I'm satisfied just to let you go with that

reaction and have you confer about a process for motion

practice to resolve these issues, unless there are things you

want to raise with me now.

Ms. Rapp, what do you think?

MS. RAPP: Thank you, Your Honor. We all, I'm sure,

appreciate the time you obviously already put into this.

That's fine for plaintiff, and if -- unless they have a

different approach, I would suggest maybe that we send you an

email by Thursday or Friday, even sooner, if that's what you

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Case 3:15-cv-01857-SI Document 127 Filed 07/03/18 Page 9 of 12
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want, setting forth a proposal for you as well as the calendar

dates which will get everything on file.

THE COURT: Okay. Ms. Anchors? 

MS. ANCHORS: Yes, Your Honor. Thank you very much

for the time you've spent as well. In terms of your direction

here, I just want to make sure that, because the trial

documents were not due at this time, that -- that a process

order -- we'd be filing potentially proposed jury instructions

or there would be some motion in limine filings. That would

not alter the deadline for any other jury instruction and

motion in limine filings. At this point, those are set for

October 1st; is that correct?

THE COURT: I don't want -- I don't want you to file

any of those things until we get to a much clearer formulation

of the pretrial order and the issues for the jury to decide, so

first we're going to --

MS. ANCHORS: Understood.

THE COURT: We're going to get to a place where these

four legal issues get presented and resolved, and I think that

will clean things up a lot, but there may be more that needs to

be done. So you're okay with my approach of your conferring

with opposing counsel and sending me a joint email message with

respect to the type of motion you all propose in order to get

to a legal ruling on those issues and then a proposed briefing

schedule for that?

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Case 3:15-cv-01857-SI Document 127 Filed 07/03/18 Page 10 of 12
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MS. ANCHORS: Yes, Your Honor. Thank you.

THE COURT: Can you confer and then send me that

joint message by, say, Friday at noon? Ms. Rapp?

MS. RAPP: Not a problem for plaintiff, Your Honor.

THE COURT: Okay.

MS. ANCHORS: That works for defendant as well,

Your Honor.

THE COURT: Okay. So we'll just have the minutes for

this conference reflect that the Court discussed with the

parties their proposed pretrial order and proposed verdict

form, directed the parties to confer regarding forms of motion

practice to address the four legal issues that were identified

in the telephone conference, and the parties are to provide the

Court, no later than noon on Friday, a single joint email

message with a proposed schedule for that motion practice.

I'll review it, and then I'll issue an order on how to do

that. We'll just leave the proposed pretrial order and the

proposed verdict forms pending further development after these

issues get boiled down a little more. All right?

MS. RAPP: Thank you, Your Honor.

MS. ANCHORS: Thank you, Your Honor.

THE COURT: Okay. That's all for today.

(Hearing concluded.) 

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Case 3:15-cv-01857-SI Document 127 Filed 07/03/18 Page 11 of 12
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C E R T I F I C A T E 

Lori Wakefield v. ViSalus, Inc. 

3:15-cv-01857-BR 

TELEPHONIC STATUS CONFERENCE 

June 26, 2018 

 I certify, by signing below, that the foregoing is a true 

and correct transcript, to the best of my ability, of the 

telephonic oral argument heard via conference call, taken by 

stenographic means. Due to the telephonic connection, parties 

appearing via speakerphone or cell phone, speakers overlapping 

when speaking, speakers not identifying themselves before they 

speak, fast speakers, the speaker's failure to enunciate, 

and/or other technical difficulties that occur during 

telephonic proceedings, this certification is limited by the 

above-mentioned reasons and any technological difficulties of 

such proceedings occurring over the speakerphone at the United 

States District Court of Oregon in the above-entitled cause. 

A transcript without an original signature, conformed 

signature, or digitally signed signature is not certified. 

/s/Jill L. Jessup, CSR, RMR, RDR, CRR, CRC 

___________________________________________ 

Official Court Reporter Signature Date: 6/29/18 

Oregon CSR No. 98-0346 CSR Expiration Date: 9/30/20 

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Case 3:15-cv-01857-SI Document 127 Filed 07/03/18 Page 12 of 12