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DEFENDANT’S TRIAL MEMORANDUM RE 

VERDICT FORM AND DECERTIFICATION

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 M. O’Neal (admitted pro hac vice)

john.oneal@quarles.com

Zachary S. Foster (admitted pro hac vice)

zachary.foster@quarles.com

QUARLES & BRADY LLP

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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-BR

DEFENDANT’S TRIAL MEMORANDUM 

RE VERDICT FORM AND 

DECERTIFICATION

Plaintiff Lori Wakefield (“Plaintiff”) contends that if her individual claims fail at trial, the 

jury may still decide the class claims. (Dkt. 264, Plaintiff’s Position Statement Regarding 

Verdict Form (“Plaintiff’s Position Statement”).) This is not so if decertification of the class is 

warranted. As discussed herein, there are any number of pivotal grounds on which 

decertification of the “Robocall” class should be granted.

1

 1 ViSalus will be filing a motion for decertification that discusses these issues at length.

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As a threshold matter, the “class” data that Plaintiff intends to submit at trial is 

completely unreliable and incapable of ascertaining a class, as it does not identify, among other 

things, dialed calls, prerecorded calls or whether the calls were actually received. In addition, 

the data contains thousands of foreign and business numbers as well as toll free and fake 

numbers. In some instances, a single phone number appears for hundreds or thousands of 

different names. Accordingly, the data upon which Plaintiff will rely cannot form the basis to 

establish class-wide allegations.

Next, Plaintiff cannot satisfy any of the requirements of Rule 23(a). Simply put, 

resolution of Plaintiff’s claim will not resolve the claims of the class. There is no common proof 

for all class members in determining the elements of a TCPA violation, including whether a 

prerecorded message was sent and delivered, whether it qualifies as “telemarketing” under the 

TCPA, and whether the phone number is a mobile or residential landline (or, in the case of 

Plaintiff, neither). Further, Plaintiff’s claim is not typical of class members who, inter alia, (i) 

did not receive prerecorded calls at all; (ii) may have received different prerecorded messages 

related to non-marketing matters; (iii) are/were active or inactive promoters or customers, (iv) 

received calls on their mobile devices, (v) provided consent or desired the calls; and (vi) were 

called on their residential landlines or mobile phones, unlike Plaintiff, who received calls on a 

business landline. 

Likewise, Plaintiff cannot satisfy Rule 23(b)(3) requirements because the class is 

hopelessly riddled with numerous individual issues that will predominate over common ones, 

resulting in thousands of mini-trials. Some of the more than a dozen questions that will need to 

be answered as to each individual class member include, without limitation, (i) did the class 

member receive a phone call from ViSalus, (ii) was the call initiated with a prerecorded or “press 

1” message, (iii) did the class member receive and hear the prerecorded or “press 1” message, 

(iv) did the prerecorded message constitute “telemarketing” under the TCPA, (v) was the phone 

number landline or mobile, (vi) was the phone number a business or residential number, and (vii) 

did the class member consent and/or desire to receive calls from ViSalus. Given that ViSalus’ 

records do not answer these questions at all, let alone in a manner common to all class members, 

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3 DEFENDANT’S TRIAL MEMORANDUM RE 

VERDICT FORM AND DECERTIFICATION

thousands of mini-trials will be required, rendering this class unmanageable and class treatment 

inferior to other methods of adjudication. Finally, the class is impermissibly fail-safe because it 

consists solely of persons who can establish that ViSalus violated the TCPA.

I. BECAUSE DECERTIFICATION IS APPROPRIATE, THE JURY SHOULD NOT 

DECIDE THE CLASS CLAIMS

Many of the cases upon which Plaintiff relies in her Position Statement contain quotes 

which are dicta. But even if they were controlling law, these cases support the proposition that a 

jury can decide the class claims, but only if the initial certification was proper and 

decertification not appropriate. Specifically, East Texas Motor Freight Systems, Inc. v. 

Rodriguez, 431 U.S. 395 (1977) states:

Obviously, a different case would be presented if the District Court had certified a class 

and only later had it appeared that the named plaintiffs were not class members or were 

otherwise inappropriate class representatives. In such a case, the class claims would have 

already been tried, and, provided the initial certification was proper and decertification 

not appropriate, 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.

East Texas, 431 U.S. at 406 n.12 (1977) (emphasis added). Accordingly, because class 

certification was never proper and the class should be decertified (for the reasons discussed 

below), it is not appropriate for the jury to decide the class claims.

II. THE CLASS SHOULD BE DECERTIFIED 

Federal Rule of Civil Procedure 23(c)(1)(C) provides that “[a]n order that grants or 

denies class certification may be altered or amended before final judgment.” Thus, a court’s 

class certification order is “inherently tentative.” Marlo v. United Parcel Serv., Inc., 251 F.R.D. 

476, 479 (C.D. Cal. 2008) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 n.11 

(1978)). The Court remains under a continuing duty to ensure compliance with class action 

requirements, and it may decertify a class at any time. Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 

147, 160 (1982) (“Even after a certification order is entered, the judge remains free to modify it 

in light of subsequent developments in the litigation.”). “[A] district court reevaluating the basis 

for certification . . . may ‘consider the nature and range of proof necessary to establish the 

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4 DEFENDANT’S TRIAL MEMORANDUM RE 

VERDICT FORM AND DECERTIFICATION

[class-wide] allegations.’” Marlo, 251 F.R.D. at 479–80. 

It is now readily apparent—especially in light of the evidence adduced in discovery and 

designated by Plaintiff to be introduced at trial—that the “Robocall” class Plaintiff presented is 

no “class” at all and should be decertified. Plaintiff cannot sustain her burden of proof on Rule 

23’s requirements despite her continued obligation to do so. Marlo v. United Parcel Service, 

Inc., 639 F.3d 942, 946–47 (9th Cir. 2011).

As a threshold matter, the “class” data that Plaintiff plans to submit at trial is completely 

unreliable. In particular, Plaintiff is trying to introduce a wholly unreliable “Summary of Call 

Outcomes” to demonstrate the number of prerecorded calls to the certified class. (Tr. Exhs. 36–

36A.) The “Summary” purportedly compiles “ViSalus marketing campaign contact 

spreadsheets.” However, these contact lists do not reflect dialed calls. Rather, they reflect an 

assortment of lists of various origins, most of which suggest they were not used for prerecorded 

messages or telemarketing purposes. In fact, most contacts on the spreadsheets do not have call 

disposition codes whatsoever, casting serious doubt as to whether these contacts received a call 

at all,2 let alone calls that were initiated with a prerecorded message, as is required for class 

membership. 

Further, the data contains thousands of Canadian phone numbers, even though the 

certified class is defined as “individuals in the United States.” Even further, the data contains 

thousands of business numbers associated with corporations or other business entities, and not 

individuals. In addition, some entries list toll free numbers, while still others list obviously fake 

or “bad” numbers. The utter unreliability of this list is further demonstrated by the presence of 

single phone numbers appearing for hundreds or thousands of different names. The “data” is—

for lack of a better term—“junk science.” Remarkably, the summary and the spreadsheets on 

which it is based was not the work of a hired expert, as is typical in a class action of this nature. 

Rather, someone in Plaintiff counsel’s back office prepared them. Simply put, Plaintiff’s own 

“evidence” demonstrates that class resolution is not appropriate.

 

2 Importantly, disposition codes do not signify that a call was successfully made or that a prerecorded message was 

sent and received. Disposition codes may reflect, for example, busy signals, technical issues, or answering machine.

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5 DEFENDANT’S TRIAL MEMORANDUM RE 

VERDICT FORM AND DECERTIFICATION

A. Plaintiff Cannot Satisfy the Requirements of Rule 23(a)

1. Plaintiff Cannot Demonstrate Numerosity

Rule 23(a)(1) requires that plaintiffs demonstrate that “the class is so numerous that 

joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). In order to establish 

numerosity, Plaintiff must provide a reliable means of estimating which individuals received and 

heard a prerecorded voice message. Smith v. City of Corvallis, No. 6:14-cv-01382, 2016 WL 

3193190, at *10 (D. Or. June 6, 2016) (plaintiff must provide “reliable evidence” to show the 

number of potential class members).

Plaintiff will be unable to provide an objective manner to determine who received a 

prerecorded call. Even if she could, the numerosity requirement remains unmet unless she can 

also show that a sufficient number of those called actually heard a prerecorded voice and thus, 

are members of the class. But there is simply no way to determine whether ViSalus called a 

contact, and if so, whether that call was initiated with a prerecorded message that was 

played and heard. Thus, any “estimation” of numerosity would be plainly unreliable. 

2. There Are No Common Issues

Class certification is only appropriate when the case presents “questions of law or fact 

common to the class.” Fed. R. Civ. P. 23(a)(2). In order to satisfy the commonality requirement, 

Plaintiff must show that the class members suffered the “same injury.” Wal-Mart Stores v. 

Dukes, 564 U.S. 338, 353 (2011) (citation and quotation marks omitted). 

This is one of the fundamental reasons this class must be decertified. There is no 

“standardized conduct” here. There is no common proof—no proof for one claimant 

(Wakefield) that is the proof for all members of the class. Indeed, the “proof” Plaintiff’s counsel 

intends to offer is precisely the opposite of class proof, as each element of the TCPA is subject to 

individualized proof. 

The certified class is a ginormous jambalaya of various data lists. In addition to not 

knowing if a call was made or a prerecorded message played and heard, the “class” list is 

comprised of both mobile and landline phones. But Plaintiff does not even know, nor can she

prove, which phone numbers are mobile and which are landline. Plaintiff did not perform 

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this analysis. And again, there is no expert to testify on this issue. This is significant because the 

different phone types implicate different sections of the TCPA with varying elements and 

defenses. For example, business landlines are not protected under the TCPA. See 47 U.S.C. 

§ 227(b)(1)(B) (applies to “residential” telephone lines); see also 47 C.F.R. 64.1200(a)(3)

(same).

There is also no common way to determine whether any call actually made was 

telemarketing, as defined by the TCPA, because Plaintiff is unable to tie a specific telephone 

script or recording to any specific campaign or class member. This is not a case where the 

company sent out the same prerecorded voice message to the same phone type with the same

telephone script. Further, any calls may or may not have been expected or desired. Promoters 

and customers provided permission to be called and/or texted in a variety of ways. In short, none 

of these issues can be resolved on a class wide basis “in one stroke.” Wal-Mart, 564 U.S. at 350.

3. Plaintiff’s Claims or Defenses Are Not Typical of the Class

Plaintiff must also show that her claims or defenses are typical of the claims or defenses 

of the class. Fed. R. Civ. P. 23(a)(3). In order to determine whether claims and defenses are 

typical, the court looks to “whether other members have the same or similar injury, whether the 

action is based on conduct which is not unique to the named plaintiffs, and whether other class 

members have been injured by the same course of conduct.” Hanon v. Dataproducts Corp., 976 

F.2d 497, 508 (9th Cir. 1992) (quotation marks omitted). 

Plaintiff does not satisfy the typicality requirement for a multitude of reasons: 

(1) Plaintiff’s own claim is not typical of class members who may have received different 

prerecorded messages related to different campaigns (which may or may not have been 

telemarketing) or who did not receive and hear any prerecorded message at all.

(2) Plaintiff’s own claim is not typical of class members who are/were active or inactive 

promoters because she is/was neither. Any calls made to Plaintiff, a former promoter of 

ViSalus, were an anomaly and against company policy because company policy was to remove 

cancelled accounts from contact lists, including any calling lists. 

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(3) Plaintiff’s own claim is not typical of class members who are customers because 

Plaintiff was a promoter. Promoters are independent business owners selling product in 

connection with their businesses whereas customers are consumers purchasing product for

personal or household use. 

(4) Plaintiff’s own claim is not typical of class members who consented, requested, 

and/or otherwise desired to receive telemarketing calls. Plaintiff repeatedly contends that she 

requested not to be called and to be placed on ViSalus’ internal DNC list. In contrast, many 

class members did not make such a request and/or desired telemarketing calls from ViSalus. 

(5) Plaintiff’s own claim is not typical of class members who are promoters or customers 

who were called on their residential landlines or mobile phones because she was called on a 

business landline, which does not qualify for protection under the TCPA. In fact, her claim is 

based, in part, on the alleged interference the calls caused to her home daycare business. 

(6) Plaintiff’s own claim is not typical of class members generally because she shared the 

landline phone number at issue with her husband, who was also a promoter with ViSalus. It is 

entirely possible that any calls were intended for Plaintiff’s husband, and not Plaintiff. This 

presents issues and defenses unique to Plaintiff and calls into question Plaintiff’s standing to 

bring suit.

(7) Plaintiff’s own claim is not typical of class members who received a call on their 

mobile devices. Again, calls to mobile phones versus landlines involve entirely different 

subsections of the TCPA and have different elements and defenses. 

In short, Plaintiff’s claim is unique to her and she is unfit to represent the class.

4. Plaintiff Is Not an Adequate Class Representative

Finally, Rule 23(a) requires that Plaintiff must “fairly and adequately protect the interests 

of the class.” Fed. R. Civ. P. 23(a)(4). This requirement turns on two questions: (1) whether 

“the named plaintiffs and their counsel have any conflicts of interest with other class members;” 

and (2) whether “the named plaintiffs and their counsel [will] prosecute the action vigorously on 

behalf of the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998).

As a disgruntled former promoter, Plaintiff is differently-situated from the rest of the 

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VERDICT FORM AND DECERTIFICATION

class, which consists of customers and promoters who did not cancel their accounts. Plaintiff 

seeks to represent customers who enjoy and/or benefit from ViSalus’ products and promoters 

whose home-based businesses and/or livelihoods depend on the company’s continued 

operations. 3 Also, and somewhat ironically, class promoters may have requested that 

prerecorded messages be sent on their behalf to their downline customers and/or promoters. 

Plaintiff’s interests not only diverge from her fellow class members, but may be directly adverse 

to them.

B. Plaintiff Cannot Satisfy the Requirements of Rule 23(b)(3)

1. Individual Issues Predominate

Rule 23(b)(3) calls for two separate inquiries: (1) do issues of fact or law common to the 

class “predominate” over issues unique to individual class members, and (2) is the proposed 

class action “superior” to other methods available for adjudicating the controversy. Fed. R. Civ. 

P. 23(b)(3). 

The class is hopelessly riddled with individual issues which will predominate over 

common issues, resulting in innumerable mini-trials. Some of the questions that will need to be 

answered for each individual class member include, but are not limited to, the following: 

(1) did the class member receive a phone call and is so, on what date and time; 

(2) was the call initiated with a prerecorded or “press 1” message; 

(3) did the class member receive and hear the prerecorded or “press 1” message; 

(4) did the class member “press 1” and speak with a live agent and if so, what was said; 

(5) was the prerecorded message from ViSalus or a promoter to his or her downline; 

(6) did the prerecorded message constitute “telemarketing” under the TCPA; 

(7) was the phone number landline or mobile at the time of the prerecorded call; 

(8) was the number a business or residential landline at the time of the prerecorded call; 

(9) was the class member a promoter or a customer at the time of the prerecorded call;

(10) was the class member a business entity or individual; 

 3 A catastrophic statutory damages award against this financially struggling company would ensure its bankruptcy.

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VERDICT FORM AND DECERTIFICATION

(11) was the class member located in the United States; 

(12) did the class member have an active, inactive, or cancelled account at the time of the 

prerecorded call; 

(13) did the class member provide consent or otherwise expect or desire to receive 

telemarketing calls from ViSalus; 

(14) did the class member have verbal communications with promoters about ViSalus 

telephonic outreach during the enrollment/onboarding process and if so, what was 

verbally discussed; 

(15) did the class member opt out of telephone communications prior to any prerecorded call; 

(16) was the class member on an opt-out list at the time of the call; and,

(17) did the class member own the phone number called or otherwise have standing. 

Accordingly, individual issues—not common issues of fact or law—predominate and

separate adjudications of each class member’s individual claim or defense to that claim will be 

required, resulting in mini-trials across the class.

2. A Class Action Is Neither Manageable Nor Superior

A class action is only superior to other methods of adjudication if “class wide litigation of 

common issues will reduce litigation costs and promote greater efficiency.” Valentino v. CarterWallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996). Rule 23(b)(3)(D) mandates that a court 

consider the “likely difficulties in managing a class action” when evaluating whether class action 

treatment is superior to other methods of adjudications. Manageability “encompasses the whole 

range of practical problems that may render the class action format inappropriate for a particular 

suit.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 164 (1974). The Robocall class is 

unmanageable because thousands of mini-trials taking years to complete at great cost will be 

required to determine the answers to the individualized issues identified above, given that 

ViSalus’ records do not establish the answers, including whether calls were made to any class 

members, whether a prerecorded message was sent, and whether a message was played and 

heard. As such, this case presents not just a manageability difficulty, but a near impossibility. 

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C. Plaintiff Cannot Satisfy Her Burden of Proving Class Liability Through 

Post-Trial Affidavits

Plaintiff suggests that to establish liability on behalf of the entire class, she need only 

prove at trial that she received a telemarketing call using an artificial or prerecorded voice to her 

landline telephone number. Not so. Merely providing evidence to establish her own claim is 

insufficient to establish liability as to the class. See Gutierrez v. Wells Fargo & Co., No. C 07–

05923 WHA, 2009 WL 1247040, at *6 (N.D. Cal. May 5, 2009). Rather, the class cannot 

recover unless Plaintiff presents sufficient proof that each class member has a viable claim. See 

id. As such, for an individual class member to recover, Plaintiff must submit evidence sufficient 

to satisfy the individual class member’s burden of proof for each of the elements of the class 

member’s individual claim.

Plaintiff attempts to side-step the burden of class proof by suggesting that post-trial 

declarations may be submitted affirming that ViSalus called class members on their cellular 

telephone or residential landline and that they heard an artificial or prerecorded voice. However, 

allowing such post-trial evidence (i) would violate ViSalus’ Seventh Amendment right to a jury 

trial on all factual issues, see Ross v. Bernhard, 396 U.S. 531, 550 (1970) (holding that 

proceeding under Rule 23 does not alter this right), (ii) runs afoul of the Rules Enabling Act, by 

allowing the jury to assess class liability without evidence supporting each essential element of 

their TCPA claim, and (iii) would violate ViSalus’ Due Process right to not pay in excess of its 

liability, which would occur without Plaintiff actually demonstrating at trial that the class 

members each received calls on a cell phone or residential landline and heard an artificial or 

prerecorded voice. Cases approving the use of post-trial declarations focus on whether a class 

member is entitled to a share of the damages, and in what amount, but not whether the defendant 

is liable for damages in the first instance. See Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 

1131 (9th Cir. 2017) (noting that Rule 23 contemplates individual claims determinations “after a 

finding of liability”).

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D. The Certified Class Is Fail-Safe

A class is fail-safe if it is “defined in a way that precludes membership unless the liability 

of the defendant is established.” Kamar v. RadioShack Corp., 375 F. App’x 734, 736 (9th Cir. 

2010). In other words, once it is determined that a potential class member cannot prevail against 

the defendant, the person “drops out of the class.” Id. Fail-safe classes are “palpably unfair” to 

defendants, as they “preclude[] the possibility of an adverse judgment against class members; the 

class members either win or are not in the class.” Genenbacher v. CenturyTel Fiber Co. II, 244 

F.R.D. 485, 488 (C.D. Ill. 2007); Kamar, 375 F. App’x at 736. 

Here, the class definition is impermissibly fail-safe because class membership is entirely 

dependent on merit determinations, and consists solely of persons who can establish that ViSalus 

violated the TCPA. See, e.g., Olney v. Job.com, Inc., No. 1:12–CV–01724–LJO, 2013 WL 

5476813, at *11 (E.D. Cal. Sept. 30, 2013) (class defined as “anyone who received [a call from 

defendant to her cellular phone made through the use of an artificial or prerecorded voice] 

without prior express consent” was fail-safe because the class would consist of “only those 

potential members who would prevail”).

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VERDICT FORM AND DECERTIFICATION

III. CONCLUSION

For the reasons stated, many of which we expect will be apparent at trial, the “Robocall” 

class should be decertified. 

DATED this April 12th day of 2019.

QUARLES & BRADY LLP

By /s/ John Maston O'Neal

John Maston O'Neal (admitted pro hac vice)

john.oneal@quarles.com

Zachary S. Foster (admitted pro hac vice)

zachary.foster@quarles.com

QUARLES & BRADY LLP

101 E. Kennedy Blvd., Ste. 3400

Tampa, FL 33602

Telephone: 813.387.0300

Facsimile: 813.387.1800

MILLER NASH GRAHAM & DUNN LLP

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

josh.sasaki@millernash.com

Nicholas H. Pyle, OSB No. 165175

nicholas.pyle@millernash.com

Telephone: 503.224.5858

Facsimile: 503.224.0155

Attorneys for Defendant ViSalus, Inc.

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I hereby certify that I served the foregoing on Plaintiff the foregoing document:

Scott F. Kocher

Stephen J. Voorhees

FORUM LAW GROUP LLC

811 S.W. Naito Parkway, Suite 420

Portland, Oregon 97204

Telephone: 503.445.2102

Fax: 503.445.2120

E-mail: scott@forumlawgroup.com

stephen@forumlawgroup.com

Attorneys for Plaintiff

Stefan Coleman

Law Offices of Stefan Coleman, LLC

1309 Jericho Tpke, 2nd Floor

New Hyde Park, NY 11040

Tel: 877.333.9427

Fax: 888.498.8946

E-mail: law@stefancoleman.com

Attorneys for Plaintiff

Rafey S. Balabanian (pro hac vice)

Eve-Lynn Rapp (pro hac vice)

EDELSON PC

123 Townsend Street, Suite 100

San Francisco, CA 94107

Telephone: 415.212.9300

Fax: 415.373.9435

E-mail: rbalabanian@edelson.com

erapp@edelson.com

Attorneys for Plaintiff

Benjamin H. Richman (pro hac vice)

EDELSON PC

350 N. LaSalle Street, 14th Floor

Chicago, IL 60654

Telephone: 312.589.6370

Fax: 21.589.6378

E-mail: brichman@edelson.com

Attorneys for Plaintiff

by the following indicated method or methods on the date set forth below:

 CM/ECF system transmission.

 E-mail. As required by Local Rule 5.2, any interrogatories, requests for 

production, or requests for admission were e-mailed in Word or WordPerfect 

format, not in PDF, unless otherwise agreed to by the parties.

 Facsimile communication device.

 First-class mail, postage prepaid.

 Hand-delivery.

 Overnight courier, delivery prepaid.

DATED this 12th day of April, 2019.

/s/John Maston O'Neal

Attorneys for Defendant ViSalus, Inc.

Case 3:15-cv-01857-SI Document 276 Filed 04/12/19 Page 13 of 13