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 all others similarly 

situated,

 Plaintiff,

 v.

VISALUS, INC.,

a Nevada corporation,

 Defendant.

No. 3:15-cv-01857

Plaintiff’s motions in limine 1-6 

Case 3:15-cv-01857-SI Document 177 Filed 01/16/19 Page 1 of 15
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 177 Filed 01/16/19 Page 2 of 15
Plaintiff’s motions in limine i

Table of Contents

Motion in limine #1: No evidence or argument that ViSalus did not know or 

misunderstood the requirements of the TCPA. ...................................................... 1

Motion in limine #2: No evidence or argument regarding the amount of statutory 

damages for violations of the “artificial or prerecorded voice” section of the 

TCPA.................................................................................................................... 3

Motion in limine #3: No evidence or argument that ViSalus had prior express 

consent to call Ms. Wakefield or class members. .................................................. 4

Motion in limine #4: No evidence or argument that ViSalus applied for a 

retroactive waiver or that the Federal Communications Commission granted 

retroactive waivers to other companies. ................................................................ 5

Motion in limine #5: No evidence or argument regarding ViSalus’ financial 

condition............................................................................................................... 7

Motion in limine #6: No evidence or argument regarding class counsels’ attorneys’ 

fees. ...................................................................................................................... 8

Case 3:15-cv-01857-SI Document 177 Filed 01/16/19 Page 3 of 15
Plaintiff’s motions in limine ii

Table of Authorities

Cases

Bolden v. City of Portland, 

Case No. 3:13-cv-00224-HA, 2014 U.S. Dist. LEXIS 36286 (D. Or. Mar. 19, 2014). .. 5

Bridgeview Health Care Ctr., Ltd. v. Clark,

Case No. 1:09-cv-05601, 2013 U.S. Dist. LEXIS 37310 (N.D. Ill. Mar. 19, 2013)....... 2

Brooks v. Cook, 

938 F.2d 1048 (9th Cir. 1991)...................................................................................... 8

Charvat v. Ryan, 

879 N.E.2d 765 (Ohio 2007)........................................................................................ 2

Davis v. Diversified Consultants, Inc., 

36 F. Supp. 3d 217 (D. Mass. 2014)............................................................................. 2

Herwick v. Budget Rent a Car Sys.,

Case No. 2:10-cv-00409-SJO-PLA, 2011 U.S. Dist. LEXIS 163813 (C.D. Cal. Mar. 

22, 2011)...................................................................................................................... 8

In re Homestore.com, Inc. Sec. Litig.,

Case No. 2:01-cv-11115-RSWL-CWx, 2011 U.S. Dist. LEXIS 10677 (C.D. Cal. Jan. 

25, 2011)...................................................................................................................... 8

Lardner v. Diversified Consultants, Inc.,

Case No. 1:13-cv-22751-UU, 2014 U.S. Dist. LEXIS 68572 (S.D. Fla. May 8, 2014) . 4

Morrison v. Mahoney,

399 F.3d 1042 (9th Cir. 2005)...................................................................................... 5

Redwood Christian Schs v. Cty. of Alameda, 

Case No. 3:01-cv-04282-SC, 2007 U.S. Dist. LEXIS 8287 (N.D. Cal. Jan. 26, 2007).. 9

Roylance v. ALG Real Estate Servs., 

Case No. 5:14-cv-02445-PSG, 2015 U.S. Dist. LEXIS 44930 (N.D. Cal. Mar. 16, 

2015). .......................................................................................................................... 2

Sengenberger v. Credit Control Servs., 

Case No. 1:09-cv-02796, 2010 U.S. Dist. LEXIS 43874 (N.D. Ill. May 5, 2010)......... 2

Van Patten v. Vertical Fitness Grp., LLC, 

847 F.3d 1037 (9th Cir. 2017)...................................................................................... 4

Williams v. Wells Fargo Bank, N.A., 

Case No. 5:13-cv-03387-EJD, 2017 U.S. Dist. LEXIS 116087 (N.D. Cal. July 24, 

2017) ........................................................................................................................... 9

Statutes

47 U.S.C. § 227 ............................................................................................................... 3

Case 3:15-cv-01857-SI Document 177 Filed 01/16/19 Page 4 of 15
Plaintiff’s motions in limine iii

47 U.S.C. § 312 ............................................................................................................... 1

Rules

Fed. R. Civ. Pro. 37 ......................................................................................................... 5

Fed. R. Evid. 401..............................................................................................3, 4, 7, 8, 9

Fed. R. Evid. 403..............................................................................................3, 4, 7, 8, 9

Regulations

47 C.F.R. § 64.1200......................................................................................................... 7

Case 3:15-cv-01857-SI Document 177 Filed 01/16/19 Page 5 of 15
Plaintiff’s motions in limine 1

Plaintiff Wakefield and the Certified Class respectfully bring the following 

motions in limine. 

Motion in limine #1: No evidence or argument that ViSalus did not know or 

misunderstood the requirements of the TCPA.

Relief requested: ViSalus is precluded from presenting evidence or argument that 

it did not know or misunderstood the requirements of the TCPA. 

Ms. Wakefield and the class allege that ViSalus’ violations of the TCPA were 

willful and knowing, and that, as a result, the Court should award treble damages. Dkt. 

36 (First Amended Complaint) at ¶¶ 46, 52. To rebut these allegations, ViSalus intends 

to present evidence and argument that it did not know or that it misunderstood the 

requirements of the TCPA—and thus did not intend to violate them. Dkt. 145 (Notice of 

Withdrawal of Motion for Leave to Amend Anwer) at 2 (asserting that ViSalus intends to 

argue that it had a “practice and policy of placing marketing calls only to its customers 

and promoters”—and thus incorrectly thought it had prior express consent to place such 

calls—“for purposes of negating Plaintiff’s claim that ViSalus’s alleged violations of the 

TCPA were willful or knowing.”).

ViSalus’ argument is incorrect as a matter of law. As a result, the Court should 

preclude ViSalus from making it. 

The TCPA is part of the Communications Act of 1934. The Act defines “willful” 

as “the conscious and deliberate commission or omission of [an] act, irrespective of any 

intent to violate any provision of this Act.” 47 U.S.C. § 312(f)(1) (emphasis added). As 

a result, as courts around the country have recognized, “a person need not have intent to 

commit an unlawful act in order to act willfully or knowingly under the TCPA.” 

Case 3:15-cv-01857-SI Document 177 Filed 01/16/19 Page 6 of 15
Plaintiff’s motions in limine 2

Roylance v. ALG Real Estate Servs., Case No. 5:14-cv-02445-PSG, 2015 U.S. Dist. 

LEXIS 44930, at *31 (N.D. Cal. Mar. 16, 2015). 

“[I]n the context of the TCPA, the term acting ‘willfully’ means that the defendant 

acted voluntarily, and under its own free will, regardless of whether the defendant knew 

that it was acting in violation of the statute.” Sengenberger v. Credit Control Servs., 

Case No. 1:09-cv-02796, 2010 U.S. Dist. LEXIS 43874, at *16-17 (N.D. Ill. May 5, 

2010) (emphasis added) (internal citations and quotations omitted). Similarly, “[f]or an 

award of treble damages under the TCPA, the term ‘knowingly’ requires that liability be 

imposed even without [a defendant’s] knowledge that the conduct violated the statute.” 

Charvat v. Ryan, 879 N.E.2d 765, 770 (Ohio 2007) (emphasis added). “‘[T]he 

knowledge requisite to knowing violation of a statute is factual knowledge as 

distinguished from knowledge of the law.’” Id at 770 (emphasis added) (quoting Bryan 

v. United States, 524 U.S. 184, 192 (1998)). Thus, “‘the term ‘knowingly’ merely 

requires proof of knowledge of the facts that constitute the offense.’” Id.; Davis v. 

Diversified Consultants, Inc., 36 F. Supp. 3d 217, 226-27 (D. Mass. 2014) (“[T]he willful 

or knowing standard [of the TCPA] require[s] only that a party’s actions were intentional, 

not that it was aware that it was violating the statute.”) (emphasis added); Bridgeview

Health Care Ctr., Ltd. v. Clark, Case No. 1:09-cv-05601, 2013 U.S. Dist. LEXIS 37310, 

at *21-22 (N.D. Ill. Mar. 19, 2013) (“[A] plaintiff need not prove that defendant had 

knowledge of the TCPA’s provisions in order to establish that the defendant willfully or 

knowingly violated the TCPA.”) (emphasis added) (internal citations and quotations 

omitted).

Case 3:15-cv-01857-SI Document 177 Filed 01/16/19 Page 7 of 15
Plaintiff’s motions in limine 3

Because ViSalus’ theory that it did not willfully or knowingly violate the TCPA 

because it lacked knowledge of the TCPA’s provisions is incorrect as a matter of law, the 

Court should preclude ViSalus from presenting evidence or argument on this topic. Fed. 

R. Evid. 401, 403. 

Motion in limine #2: No evidence or argument regarding the amount of 

statutory damages for violations of the “artificial or prerecorded voice” 

section of the TCPA. 

Relief requested: ViSalus is precluded from presenting evidence or argument that 

Ms. Wakefield and class members are entitled to minimum statutory damages for 

violations of the “artificial or prerecorded voice” section of the TCPA. 

For each violation of the “artificial or prerecorded voice” section of the TCPA, a 

plaintiff may “recover for actual monetary loss” or “receive $500 in damages ... 

whichever is greater.” 47 U.S.C. § 227(b)(3)(B) (providing that a plaintiff may “receive 

$500 in damages” for each violation). 1

At trial, Ms. Wakefield and the class will seek $500 per violation and not actual 

damages. See Dkt. 176 (Trial brief) at 10. As a result, the jury will not be asked to 

determine damages. See Dkt. 180 (Proposed verdict form). Thus, that Ms. Wakefield 

and the class are entitled to receive $500 per violation is not relevant to any issue before 

the jury. 2

 

1 As set forth above, the Court may treble this amount for willful violations. See 

motion in limine #1.

2 Ms. Wakefield also alleges a violation of the “do not call” section of the TCPA. 

This section provides for “up to $500” in damages per violation, rather than a fixed 

amount. 47 U.S.C. § 227(c)(5) (emphasis added). If the jury finds one or more 

Case 3:15-cv-01857-SI Document 177 Filed 01/16/19 Page 8 of 15
Plaintiff’s motions in limine 4

In addition, at trial, Ms. Wakefield and the class will demonstrate that ViSalus

violated the “artificial or prerecorded voice” section of the TCPA millions of times. See

Dkt. 176 (Trial brief). If the jury is told that the TCPA provides for $500 in damages per 

violation, the magnitude of the potential damages might improperly influence the jury’s

determination as to liability.

Because the amount of statutory damages for violations of the “artificial or 

prerecorded voice” section of the TCPA has no possible relevance to any jury issue in 

this case and could improperly influence the jury, ViSalus should not be allowed to 

present any evidence or argument on this topic. Fed. R. Evid. 401, 403; Lardner v. 

Diversified Consultants, Inc., Case No. 1:13-cv-22751-UU, 2014 U.S. Dist. LEXIS 

68572, at *1 (S.D. Fla. May 8, 2014) (“As the issue of minimum statutory damages has 

already been resolved by the Court in its Order on Summary Judgment, ... this evidence 

is irrelevant and Plaintiff's Motion [in limine to exclude such evidence] shall be 

granted.”).

Motion in limine #3: No evidence or argument that ViSalus had prior express 

consent to call Ms. Wakefield or class members. 

Relief requested: ViSalus is precluded from presenting evidence or argument that 

it had prior express consent to call Ms. Wakefield or class members. 

Prior express consent is an affirmative defense to the TCPA violations at issue in

this case. Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1044 (9th Cir. 2017)

 

violations of this section, the jury will have to decide what amount “up to $500” to 

award. Thus, Plaintiff is not seeking to preclude evidence regarding the amount of 

damages available for violations of the “do not call” section. 

Case 3:15-cv-01857-SI Document 177 Filed 01/16/19 Page 9 of 15
Plaintiff’s motions in limine 5

(“Express consent is not an element of a plaintiff's prima facie case but is an affirmative 

defense for which the defendant bears the burden of proof.”). To preserve this defense 

for trial, ViSalus would have had to raise it in its Answer. See Morrison v. Mahoney, 399 

F.3d 1042, 1046 (9th Cir. 2005) (“Under the Federal Rules of Civil Procedure, a party, 

with limited exceptions, is required to raise every defense in its first responsive pleading, 

and defenses not so raised are deemed waived.”); Bolden v. City of Portland, Case No. 

3:13-cv-00224-HA, 2014 U.S. Dist. LEXIS 36286, at *14 (D. Or. Mar. 19, 2014)

(“Because defendants did not raise the notice requirement defense in their Answer to the 

Second Amended Complaint, defendants waived the defense and are not permitted to 

raise it now or at trial.”).

ViSalus did not raise a prior express consent affirmative defense in its Answer. 

Dkt. 41 (Amended Answer). Moreover, although ViSalus filed a motion to amend its 

answer to add a prior express consent defense, it later withdrew the motion. And in its 

notice of withdrawal, it expressly represented that it would not raise this defense at trial. 

Dkt. 145 (Notice of Withdrawal of Motion for Leave to Amend Answer) at 2. 

ViSalus should not be allowed to present a defense it failed to disclose in its 

Answer, and should be held to the representations it made in its filings with the Court. 

Accordingly, the Court should preclude ViSalus from presenting evidence or argument 

that it had prior express consent to call Ms. Wakefield or class members at trial. Fed. R. 

Civ. Pro. 37. 

Motion in limine #4: No evidence or argument that ViSalus applied for a 

retroactive waiver or that the Federal Communications Commission granted 

retroactive waivers to other companies. 

Case 3:15-cv-01857-SI Document 177 Filed 01/16/19 Page 10 of 15
Plaintiff’s motions in limine 6

Relief requested: ViSalus is precluded from presenting evidence or argument that 

it applied for a retroactive waiver of the prior express consent requirements contained in 

47 C.F.R. § 64.1200(a)(2), (a)(3) and (f)(8), or that the FCC granted such waivers to 

other companies. 

The rules implementing the TCPA set forth a number of requirements that must be 

satisfied to obtain “prior express consent” to place calls that would otherwise violate the 

statute. See 47 C.F.R. § 64.1200(a)(2), (a)(3) and (f)(8). These requirements went into 

effect in October 2013. 

In June of 2017, ViSalus filed a petition with the FCC seeking a retroactive waiver 

of the requirements for prior express consent. See Ex. 1 (Petition for Retroactive 

Waiver). In its Petition, ViSalus asserted that other companies had obtained retroactive 

waivers of these requirements. Id. at 5-7. The retroactive waivers permitted those 

companies to rely—for a limited time—on prior express consents obtained prior to 

October 2013, even if those consents did not comply with all of the new requirements of 

the rules. Id. ViSalus’ Petition has not been granted. 

Because ViSalus’ Petition has not been granted, it could not possibly have any

relevance to any issue in this case. 

Moreover, if the Petition were granted, it would still have no relevance to any 

issue in this case because—unlike the companies that actually obtained retroactive 

waivers—ViSalus does not have any evidence that it had any type of prior express 

consent (compliant with the requirements of the October 2013 rules implementing the 

TCPA or not). Moreover, ViSalus did not raise a prior express consent defense in its 

Case 3:15-cv-01857-SI Document 177 Filed 01/16/19 Page 11 of 15
Plaintiff’s motions in limine 7

Answer, and instead represented that it would not do so. See motion in limine #3 above. 

Thus, ViSalus could not—and should not be allowed to attempt to—put forward a prior 

express consent defense, even if it were to obtain a retroactive waiver. 

Furthermore, the fact that other companies may have obtained a waiver has 

nothing to do with whether ViSalus—which did not obtain a waiver—is liable in this 

case. 

Finally, evidence or argument that ViSalus applied for—or that other companies 

obtained—retroactive waivers from the FCC would be confusing to the jury and 

prejudicial. The jury would not understand and will not be instructed on the FCC 

rulemaking process, the circumstances under which the FCC grants retroactive waivers, 

or the effect of FCC retroactive waivers on liability for TCPA violations. And if the jury 

were told that other companies obtained retroactive waivers, it might believe that those 

companies were immunized from liability for their TCPA violations and that, as a result, 

it would be unfair to hold ViSalus accountable for the violations at issue here. 

Thus, evidence or argument that ViSalus applied for, or that other companies 

received, retroactive waivers would be irrelevant, confusing, and prejudicial. The Court 

should preclude ViSalus from presenting such evidence or argument. Fed. R. Evid. 401, 

403.

Motion in limine #5: No evidence or argument regarding ViSalus’ financial 

condition. 

Relief requested: ViSalus is precluded from presenting evidence or argument 

regarding its financial condition.

Case 3:15-cv-01857-SI Document 177 Filed 01/16/19 Page 12 of 15
Plaintiff’s motions in limine 8

At trial, ViSalus may seek to garner the jury’s sympathy by presenting evidence or 

argument that its financial condition is deteriorating, that it is insolvent, or that it would 

not be able to afford to pay a judgment entered in this case. 

“Evidence of a party's financial condition is generally not relevant and can be 

unduly prejudicial, as it can distract the jury from the real issues in the case.” In re 

Homestore.com, Inc. Sec. Litig., Case No. 2:01-cv-11115-RSWL-CWx, 2011 U.S. Dist. 

LEXIS 10677, at *7 (C.D. Cal. Jan. 25, 2011) (granting motion in limine “to exclude 

reference to or evidence of Plaintiff’s financial condition”); Herwick v. Budget Rent a 

Car Sys., Case No. 2:10-cv-00409-SJO-PLA, 2011 U.S. Dist. LEXIS 163813, at *26-27 

(C.D. Cal. Mar. 22, 2011) (granting motion in limine to preclude reference to Defendant 

the City of Los Angeles’ financial condition because “evidence of the City of Los 

Angeles' lack of financial resources is irrelevant to Plaintiffs' remaining causes of 

action”). Moreover, ViSalus will not be able to show that its financial condition or 

ability to pay a judgment has any relevance to any element of the alleged TCPA 

violations or any other issue at trial. 

Accordingly, the Court should preclude ViSalus from presenting evidence or 

argument concerning its financial condition at trial. Fed. R. Evid. 401, 403.

Motion in limine #6: No evidence or argument regarding class counsels’

attorneys’ fees. 

Relief requested: ViSalus is precluded from presenting evidence or argument 

regarding class counsels’ attorneys’ fees. 

“The award of attorneys’ fees is a matter of law for the judge, not the jury.” 

Brooks v. Cook, 938 F.2d 1048, 1051 (9th Cir. 1991). Accordingly, evidence or 

Case 3:15-cv-01857-SI Document 177 Filed 01/16/19 Page 13 of 15
Plaintiff’s motions in limine 9

argument regarding the availability of attorneys’ fees in class actions is not relevant to 

any issue before the jury. See Williams v. Wells Fargo Bank, N.A., Case No. 5:13-cv03387-EJD, 2017 U.S. Dist. LEXIS 116087, at *1 (N.D. Cal. July 24, 2017) (granting 

motion in limine excluding evidence of attorneys’ fees and costs); Redwood Christian 

Schs v. Cty. of Alameda, Case No. 3:01-cv-04282-SC, 2007 U.S. Dist. LEXIS 8287, at *7 

(N.D. Cal. Jan. 26, 2007) (granting motion in limine to exclude evidence of the 

availability of attorneys’ fees because such evidence “is irrelevant and . . . unfairly 

prejudicial”).

ViSalus should therefore be precluded from presenting any evidence or argument 

on this topic at trial. Fed. R. Evid. 401, 403.

Date: January 16, 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

Case 3:15-cv-01857-SI Document 177 Filed 01/16/19 Page 14 of 15
Plaintiff’s motions in limine 10

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 177 Filed 01/16/19 Page 15 of 15