EXHIBIT "A"

Case 3:15-cv-01857-SI Document 296-1 Filed 05/10/19 Page 1 of 39
PETITION OF VISALUS, INC. FOR 

RETROACTIVE WAIVER DATED 

SEPTEMBER 13, 2017, BEFORE THE 

FEDERAL COMMUNICATIONS 

COMMISSION

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Before The

FEDERAL COMMUNICATIONS COMMISSION

Washington, D.C. 20554

In the Matter of

Petition of ViSalus, Inc., 

for Retroactive Waiver of 

47 C.F.R. § 64.1200(a)(2), (a)(3), 

(f)(8) in accordance with 

July 10, 2015 Declaratory Ruling and Order

)

)

)

)

)

)

)

CG Docket No. 02-278

PETITION FOR RETROACTIVE WAIVER

REQUEST FOR EXPEDITED RULING

I. INTRODUCTION

In light of the Federal Communication Commission’s (“Commission”) ruling on July 

10, 2015, ViSalus, Inc. (“ViSalus”), through its counsel, respectfully requests that the 

Commission grant it a retroactive waiver of the prior express consent requirements contained 

in 47 C.F.R. § 64.12000(a)(2), (a)(3) and (f)(8). There is good cause to grant ViSalus such 

a waiver, and ViSalus is similarly situated to the nine petitioners to whom the Commission 

granted retroactive waivers of the revised prior express consent rules effective October 1, 

2013. ViSalus has been sued in a class action based in part on calls by ViSalus to persons 

who gave consent to ViSalus under the rules effective prior to October 1, 2013. ViSalus 

requests expedited consideration of this petition as dispositive motions are due in that lawsuit 

on May 10, 2018.

ViSalus is a multi-level marketing company in the business of selling healthy 

lifestyle products, such as meal replacement shakes, healthy energy drinks, and healthy 

snacks, to help people lose weight and achieve healthy lifestyle goals. Customers and 

promoters (independent contractors) who wish to be contacted by ViSalus regarding 

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company offers, news, service, and products could provide their residential landline or 

cellular telephone number to ViSalus in writing either (1) on a hardcopy product order form 

or promoter application, 1 or (2) online in the “company communications” screen on the 

person’s ViSalus account (called a “ViNet” account). 2 Submitting a telephone number was 

never a condition of any purchase. 

Despite this entirely voluntary process, ViSalus has been sued in a class action 

lawsuit, alleging that it violated the Telephone Consumer Protection Act (“TCPA”) by 

making marketing calls to customers and promoters using a prerecorded message or artificial 

voice without the called parties’ prior express consent. The named plaintiff, Lori Wakefield, 

provided her residential telephone number online to ViSalus in February 2012, when she 

signed up to be a ViSalus promoter. She alleges she was called by ViSalus using a 

prerecorded marketing message in April 2015. On October 1, 2015, she filed a putative 

class-action lawsuit against ViSalus in the United States District Court, District of Oregon 

 1

 The hardcopy ViSalus promoter applications used in 2010 through October 2013 the 

following text under the order form for the person to purchase a promoter kit and products. 

Communication Preferences:

Home Phone#:____ Mobile Phone#: ____

Mobile Phone Provider (Required for ViSalus Mobile Updates (SMS) ___________

E-mail Address: _____

Receive ViSalus News & Updates via: Check at least one

 Phone  Email  Mobile Text Message (SMS)  None 

The customer application, underneath the products that could be purchased, provided 

spaces for customers to provide their home and mobile telephone numbers and underneath, 

the following:

“ Yes, I would like to receive communications from ViSalusTM regarding special 

discounts and promotions.” 2

 The “Company Communications” tab on the ViNet account allowed individuals to check 

or not check boxes for communications by email and/or telephone, including “YES – I want 

to get important ViSalus news right to my phone via text message” and “YES – I want to 

receive important phone messages from ViSalus management.” Below those boxes were 

spaces for the person to input an email, phone number and mobile phone number.

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(the “Court”), pending as Wakefield v. ViSalus, Inc., No. 3:15cv01857-BR. The Wakefield 

lawsuit is based, in part, on calls to persons who provided their telephone numbers to 

ViSalus, by one of the two methods discussed above, prior to October 16, 2013, and who 

were called after that date. In other words, the lawsuit asserts that ViSalus had to obtain new 

consent from all of its customers and promoters, in the form set forth in the revised rules,

3

in order to call those persons using a prerecorded message or artificial voice starting October 

16, 2013.4

In the 2015 TCPA Declaratory Ruling, the Commission recognized that statements 

in the 2012 TCPA Order caused legitimate confusion about whether a written consent that a 

business obtained from a consumer before October 16, 2013 was sufficient consent to make 

marketing calls, using prerecorded messages or an artificial voice, to the consumer after that 

date.5

 Accordingly, the Commission granted two petitioners retroactive waivers allowing 

them to rely on the “old” prior written consents already provided by their consumers before 

October 16, 2013, for calls to those consumers from October 16, 2013 through October 7, 

2015 (89 days after the 2015 TCPA Declaratory Ruling, being a reasonable time to come 

into compliance with the new prior express written consent rule).6 ViSalus is similarly 

 3

 See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 

CG Docket No. 02-278, Report and Order, 27 FCC Rcd 1830, 1833, para. 7 (Feb. 15, 2012) 

(the “2012 TCPA Order”).

4

 ViSalus does not concede that Ms. Wakefield’s claims have merit, and ViSalus seeks this 

waiver because it is similarly situated to those petitions who have received waivers as a result 

of the Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 

CG Docket No. 02-278, Declaratory Ruling and Order, 30 FCC Rcd 7961 (July 10, 2015) 

(the “2015 TCPA Declaratory Ruling”). 5

 Id., at 8014, para. 101 (“We nevertheless acknowledge evidence of confusion on the part 

of Petitioners, and believe it is reasonable to recognize a limited period within which they 

could be expected to obtain the prior express written consent required by our recently 

effective rule”

6

 Id., at 8014-15, para. 102.

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situated to the petitioners granted a waiver in the 2015 TCPA Declaratory Ruling as well as 

to seven petitioners granted the same waiver in 2016, and good cause exists for the 

Commission to likewise grant ViSalus the same retroactive waiver.

II. BACKGROUND

A. The TCPA and Revisions to the Commission’s Rules

In relevant party, the TCPA prohibits (for non-emergency calls): (1) initiating 

telephone calls using to a residential line using a prerecorded message or artificial voice 

without the called-party’s “prior express consent”,7 and (2) making any call using an 

automatic telephone dialing system (“autodialer”) or prerecorded message or artificial voice 

to a wireless telephone number without the called-party’s “prior express consent.”8 The 

TCPA does not define what “prior express consent” means. Before the Commission’s 2012 

rule revisions, consumers could give “prior express consent” orally or in writing, and no 

particular “magic language” was required for such consent (other than the consent must be 

to receive a marketing call).

9

The 2012 TCPA Order revised the TCPA rules to require, among other things, prior 

express written consent, with certain disclosures, for all telemarketing calls to wireless 

numbers using an autodialer or a prerecorded message or artificial voice, and for all 

telemarketing calls to residential lines using a prerecorded message or artificial voice.10

Under the revised rules, the requisite disclosures for obtaining prior express written consent 

had to include the telephone number to which the consumer authorized to receive the 

 7

 47 U.S.C. § 227(b)(1)(B).

8

 47 U.S.C. § 227(b)(1)(A). 

9

 See 2012 TCPA Order, 27 FCC Rcd at 1833, para. 7. 10 Id., at 1838, para. 20; 47 C.F.R. § 64.1200(f)(8).

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telemarketing messages, and clear and conspicuous statements that: (1) the consumer was 

authorizing the seller to deliver the telemarketing calls to that phone number using an 

autodialer or prerecorded messages or artificial voice; and (2) the consumer’s consent is not 

required to purchase any property, goods or services.11 When announcing this rule change, 

the Commission made the ambiguous statement that “once our written consent rules become 

effective . . . an entity will no longer be able to rely on non-written forms of express consent 

to make autodialed . . . telemarketing calls, and thus could be liable for making such calls 

absent prior written consent.”12 The 2012 rule changes took effect October 16, 2013.13 

B. The Commission Issues Retroactive Waivers.

The Direct Marketing Association (“DMA”) and the Coalition of Mobil Engagement 

Providers (“Coalition”) filed petitions asking the Commission to forbear from enforcing the 

new written consent requirements when companies had already obtained written consent 

from consumers (albeit, not with the newly required disclosures) to call their wireless 

numbers, and to clarify that the new rules did not nullify these previously obtained 

consents.14 In responding to these two petitions in 2015, the Commission clarified that 

consent applies per call and that “telemarketers should not rely on a consumer’s written 

consent obtained before the 2012 TCPA Order revised rules took effect.”15 However, the 

Commission acknowledged that the language in the 2012 TCPA Order “could have 

reasonably been interpreted to mean that written consent obtained prior to the consent rule’s 

 11 Id.; see also 2012 TCPA Order, 27 FCC Rcd at 1844, para. 33. 

12 Id., at 1857, para. 68 (emphasis added); see also 2015 TCPA Declaratory Ruling, 30 FCC

Rcd at 8014, para. 101.. 13 77 Fed. Reg. 63240 (Oct. 16, 2012). 

14 2015 TCPA Declaratory Ruling, 30 FCC Rcd at 8012-13, para. 98. 

15 Id., at 8014, para. 101. 

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effective date would remain valid even if it does not satisfy the current rule.” 16 Therefore, 

the Commission granted a retroactive waiver of the rule’s application to the DMA and 

Coalition, and their members, for calls made to consumers from whom they had obtained 

prior express written consent under the pre-2012 rules, and whom were called until October 

7, 2015.17 

Since the 2015 TCPA Declaratory Ruling, the Commission granted waivers to seven 

petitioners that demonstrated that they were similarly situated to the DMA and Coalition.18 

The Commission found that there was good cause for each to waive its rules.19 The 

Commission may waive its rules if: “(1) the waiver would better serve the public interest 

than would application of the rule’ and (2) special circumstances warrant a deviation from 

the general rule.”20 The Commission found that special circumstances warranted a waiver 

to the seven petitioners because, as stated in the 2015 TCPA Declaratory Ruling, there was 

confusion about the 2012 written-consent order because they could reasonably have been 

interpreted by the petitioners to mean that written consent obtained prior to the 2012 TCPA 

Order was still valid.21 The seven petitioners asserted that there was industry-wide 

confusion after the 2012 TCPA Order went into effect, and that they would need more time 

 16 Id., at 8014-15, paras. 101, 102. 17 Id.

18 Order, In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act 

of 1991, 31 FCC Rcd 11643, 11645, para. 5 (Oct. 14, 2016) (“2016 Order”). 19 Id., at 11647-48, para. 11 (citing 47 C.F.R. § 1.3; WAIT Radio v. FCC, 418 F.2d 1153 

(D.C. Cir. 1969), appeal after remand, 459 F.2d 1203 (D.C. Cir. 1972), cert denied, 409 

U.S. 1027 (1972); Northeast Cellular Tel. Co. v. FCC, 897 F.2d 1164 (D.C. Cir. 1990)).

20 Id. (citing Northeast Cellular, 897 F.2d at 1166). See also WAIT Radio, 418 F.2d at 1157 

(pursuant to its delegated authority, the Commission may waive its rules if the requested 

relief would not undermine the policy objectives of the rule and would serve the public 

interest). 

21 2016 Order, 31 FCC Rcd at 11648, para. 12. 

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to obtain new consents under the 2012 TCPA Order without running the risk of liability, and 

that they would benefit from the added clarity of a retroactive waiver.22 Each of the 

petitioners demonstrated that they incorrectly but reasonably interpreted the Commission’s 

2012 TCPA Order by citing that order’s language and the lack of evidence to refute their 

claimed confusion.23 The Commission did not require proof of actual confusion for the 

DMA or Coalition, or the seven petitioners granted waivers in October 2016.24

III. VISALUS IS SIMILARLY SITUATED AND GOOD CAUSE EXISTS FOR

ISSUING IT A RETROACTIVE WAIVER.

ViSalus is similarly situated to the DMA, the Coalition and the seven petitioners to 

whom the Commission granted retroactive waivers in 2016. Like those entities, before 

October 16, 2013, ViSalus obtained prior express written consent from consumers to call 

them with marketing messages under the “old” prior express consent rules. Like those 

entities, ViSalus called consumers from whom it had that valid prior express written consent 

under the “old” rules after October 16, 2013, with a prerecorded marketing message. Like 

several of those entities, ViSalus is facing liability due to its calls to those consumers. On 

June 23, 2017, the Court certified a class of consumers that ViSalus called with a marketing 

message, using a prerecorded message or an artificial voice, in the four years before the 

complaint was filed, from whom Plaintiff contends ViSalus lacked prior express consent 

under the TCPA.25 ViSalus ceased making outgoing marketing calls by January 2016, and 

its consent form complies with the 2012 TCPA Order. 

 22 Id., at para. 12, n.45. 

23 Id., at para. 13. 

24 Id., at 11650, para 16.

25 A copy of the Order is attached hereto at Exhibit A.

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As set forth above, the Commission may waive any provision of its rules “for good 

cause shown,”26 meaning “(1) special circumstances warrant a deviation from the general 

rule and (2) the waiver would better serve the public interest than would application of the 

rule.”27 Under these two factors, there is good cause to issue the requested retroactive waiver 

to ViSalus. 

Special circumstances warrant deviation from the 2012 TCPA Order because that 

order caused confusion about whether callers could rely on the prior express written consent 

obtained from called parties before October 16, 2013 or whether they needed to obtain new 

prior express written consent, in the form set forth in the 2012 TCPA Order, from all of their 

customers. The ambiguous statements in the 2012 TCPA Order, and the Commission’s 

acknowledgement that such statements were confusing,28 warrant a deviation from Section 

64.1200(a)(2), (a)(3) and (f)(8), and support granting a retroactive waiver to ViSalus. 

Granting ViSalus a retroactive waiver would serve the public interest because the 

TCPA and the Commission’s rules issued thereunder are intended to “empower consumers 

to decide which robocalls and text messages they receive.”29 That purpose is not served by 

subjecting ViSalus to millions of dollars in liability for calling consumers with a prerecorded 

message or artificial voice who, before October 16, 2013, provided ViSalus in writing with 

 26 47 C.F.R. § 1.3.

27 In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 

1991, 29 FCC Rcd 13998, 14008, para. 23 (Oct. 30, 2014) (citing Northeast Cellular Tel. 

Co., 897 F.2d at 1166). 28 2015 TCPA Declaratory Ruling, 30 FCC Rcd at 8014, para. 101.

29 Id. at 7964, para. 1.

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their prior express consent to be called. Indeed, the Commission has already determined that 

granting a retroactive waiver is in the public interest in similar circumstances.30

IV. CONCLUSION

For the foregoing reasons, ViSalus respectfully requests that the Commission grant 

it a waiver of 47 C.F.R. § 64.1200(a)(2), (a)(3) and (f)(8) for all telephone calls that ViSalus 

made using a prerecorded message or artificial voice, or autodialer, from October 16, 2013 

through October 7, 2015, to consumers who provided prior express written consent before 

October 16, 2013 (and did not later revoke consent).

Respectfully submitted this 13th day of September, 2017.

QUARLES & BRADY LLP

 

/s/ Sarah R. Anchors

Sarah R. Anchors

Renaissance One

2 N. Central Ave.

Phoenix, AZ 85004

602-229-5788

sarah.anchors@quarles.com

Attorneys for Petitioner ViSalus, Inc.

 30 2016 Order, 31 FCC Rcd at 11647-49, paras. 11, 16; 2015 TCPA Declaratory Ruling, 30 

FCC Rcd at 1830, para. 1.

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EXHIBIT A

EXHIBIT A

Case 3:15-cv-01857-SI Document 296-1 Filed 05/10/19 Page 12 of 39
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LORI WAKEFIELD, individually and

on behalf of all others similarly

situated,

Plaintiff,

v.

VISALUS, INC., a Nevada

corporation,

Defendant.

3:15-cv-01857-BR

 

OPINION AND ORDER

SCOTT F. KOCHER

Forum Law Group LLC

811 S.W. Naito Parkway, Suite 420

Portland, OR 97204

(503) 445-2102

RAFEY S. BALABANIAN

EVE-LYNN RAPP

STEWART R. POLLOCK

Edelson PC

123 Townsend Street, Suite 100

San Francisco, CA 94107

(415) 212-9300 

Attorneys for Plaintiff,

JOSHUA M. SASAKI

JONATHAN H. SINGER

Miller Nash Graham & Dunn LLP

3400 U.S. Bancorp Tower

111 S.W. Fifth Avenue

Portland, OR 97204

(503) 224-5858

1 - OPINION AND ORDER

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SARAH R. ANCHORS

Quarles & Brady LLP

Renaissance One

Two North Central Avenue

Phoenix, AZ 85004

(602) 229-5200

Attorneys for Defendant 

BROWN, Judge.

This matter comes before the Court on Plaintiff Lori

Wakefield’s Renewed Motion (#69) for Class Certification.1

For the reasons that follow, the Court GRANTS in part and

DENIES in part Plaintiff’s Renewed Motion for Class

Certification.

BACKGROUND

I. Factual Background

The following facts are taken from Plaintiff’s First Amended

Class Action Complaint (#36), Plaintiff’s Renewed Motion for

Class Certification, and Defendant’s Response to Plaintiff’s

Motion.

Defendant ViSalus, Inc., is a multi-level marketing company

that sells weight-loss products and dietary supplements to

promote healthy lifestyles. ViSalus primarily sells its products

1 Plaintiff filed an initial Motion (#2) to Certify Class

at the time she filed her Complaint. That Motion was withdrawn

by Plaintiff on February 5, 2016 (see Docket #37). 

2 - OPINION AND ORDER

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through “promoters” who are independent contractors who have

enrolled with ViSalus to sell its products through their own

business network. ViSalus also sells a small amount of products

directly to customers through its website.

Promoters and customers have online accounts with ViSalus in

order to purchase ViSalus products. The online account has a

“communications tab” where the promoter or customer may provide a

contact number to receive information from ViSalus by telephone. 

This contact information can be changed at any time. ViSalus

filters its communications with promoters and customers based on

the indicated preferences in the online account.

In June 2012 ViSalus initially created an outbound calling

team titled “Outbound Support” to contact people who had

attempted to purchase products but whose credit cards were

declined. Subsequently, Outbound Support began to call promoters

and customers regarding new products. They also conducted

“Winback” campaigns by calling promoters and customers who had

not purchased products for a certain period (generally three to

nine months) to let them know about special deals in an effort to

regain their business.

Initially the Outbound Support team manually dialed

telephone numbers and did not use a prerecorded message or

artificial voice. In late 2014 Outbound Support started using a

function on the telephone system titled “Progressive Outreach

3 - OPINION AND ORDER

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Manager” (POM) to dial telephone numbers automatically. Later

Outbound Support began using prerecorded messages or an

artificial voice to introduce the call and to direct the

recipient to “dial 1" to be connected to a live person. The

Outbound Support team created lists for the calling campaigns

from ViSalus’s online database using parameters for a specific

campaign, and pulled information that matched those parameters

from online account profiles. The Outbound Support team would

then upload the lists to POM and save copies in a digital folder

for reference. ViSalus produced “campaign detail reports” that

provided summaries of the number of calls made on a particular

day for a particular campaign and the results of those calls.

Plaintiff states in her Class Action Allegation Complaint

(#1) filed October 1, 2015, that she signed up to be a ViSalus

“affiliate” in February 2013.2 Within a month, however,

Plaintiff was “not happy” with the company or its products and

cancelled her account. Plaintiff alleges after she cancelled her

account, ViSalus repeatedly called her to solicit her return, but

she told them to never contact her again and to stop calling her

number.

2

 ViSalus states in its Memo in Opposition to Plaintiff’s

Motion for Certification that Plaintiff and her husband became

promoters in February 2012. ViSalus references an excerpt from

Plaintiff’s deposition, but the page cited is not included in

ViSalus’s Exhibit. For purposes of this Motion, therefore, the

Court accepts Plaintiff’s allegation as accurate.

4 - OPINION AND ORDER

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Plaintiff alleges in April 2015 she began receiving calls

from ViSalus at the telephone number that she had registered with

the National Do-Not-Call Registry. During one of those calls

Plaintiff instructed the caller to stop calling her and to make

sure she was on ViSalus’s internal do-not-call list. Plaintiff

alleges ViSalus, nevertheless, continued to call her.

II. Procedural Background

On October 1, 2015, Plaintiff filed a Class Action

Allegation Complaint (#1) in which she alleges ViSalus violated

the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. 

On February 5, 2016, Plaintiff filed her First Amended Class

Action Allegation Complaint (FAC)(#36) alleging three separate

claims against ViSalus. In Claim One Plaintiff alleges ViSalus

violated § 227(c)(5) of the TCPA when ViSalus made more than one

unsolicited telemarketing call to her and putative class members

within a 12-month period without having “prior express consent”

to place such calls even though Plaintiff and putative class

members’ telephone numbers had been registered with the National

Do-Not-Call Registry for at least 30 days. In Claim Two

Plaintiff alleges ViSalus violated § 227(b)(1)(A)(iii) of the

TCPA when ViSalus made unsolicited telemarketing calls to her and

putative class members without “prior express consent” and used

artificial or prerecorded voices when placing such calls. In

Claim Three Plaintiff alleges ViSalus violated Oregon Revised

5 - OPINION AND ORDER

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Statutes § 646.563 when ViSalus called Plaintiff and putative

class members after they had advised ViSalus that they did not

want to receive such unsolicited telemarketing calls.

On February 10, 2017, Plaintiff filed her Renewed Motion for

Class Certification seeking to certify three classes defined as

follows: 

“Do-Not-Call Class” (based on Claim One) - All

individuals in the United States who received more than

one telephone call made by or on behalf of ViSalus

within a 12-month period: (1) promoting ViSalus’s

products or services; (2) at a telephone number that

had been registered with the National Do Not Call

Registry for at least 30 days at the time of each call;

(3) where such individual had not entered into any

purchase or transaction with ViSalus within the 18

months immediately preceding such calls; and (4) where

neither ViSalus nor its agents had any current record

of express written consent to place such calls at the

times such calls were made. 

“Robocall Class” (based on Claim Two) - All individuals

in the United States who received a telephone call made

by or on behalf of ViSalus: (1) promoting ViSalus’s

products or services; (2) where such call featured an

artificial or prerecorded voice; and (3) where neither

ViSalus nor its agents had any current record of prior

express written consent to place such call at the time

such call was made.

“Oregon-Stop-Calling Class” (based on Claim Three) -

All residents of the State of Oregon who (1) received a

telephone call made by or on behalf of ViSalus; 

(2) promoting ViSalus’s products or services; (3) where

ViSalus or its agents had a “stop calling” request on

record for the telephone number called at the time such

call was made.

Plaintiff also seeks appointment as the class representative

6 - OPINION AND ORDER

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and appointment of her attorneys as class counsel.3

STANDARDS

Federal Rule of Civil Procedure 23 governs class

certification and provides:

(a) Prerequisites. One or more members of a class may

sue . . . as representative parties on behalf of

all members only if:

(1) the class is so numerous that joinder of all

members is impracticable; 

(2) there are questions of law or fact common to

the class; 

(3) the claims or defenses of the representative

parties are typical of the claims or defenses

of the class; and 

(4) the representative parties will fairly and

adequately protect the interests of the

class. 

(b) Types of Class Actions. A class action may be

maintained if Rule 23(a) is satisfied and if:

* * * 

(3) the court finds that the questions of law or

fact common to class members predominate over

any questions affecting only individual

members, and that a class action is superior

to other available methods for fairly and

efficiently adjudicating the controversy. 

The matters pertinent to these findings

include: 

3 ViSalus does not address either of these requests in

their Response, and, therefore, the Court considers the requests

to be unopposed.

7 - OPINION AND ORDER

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(A) the class members' interests in

individually controlling the prosecution

or defense of separate actions; 

(B) the extent and nature of any litigation

concerning the controversy already begun

by or against class members; 

(C) the desirability or undesirability of

concentrating the litigation of the

claims in the particular forum; and 

(D) the likely difficulties in managing a

class action. 

In Wal-Mart Stores, Inc. v. Dukes the United States Supreme

Court addressed class-action certification and set out general

standards under Rule 23: 

The class action is “an exception to the usual rule

that litigation is conducted by and on behalf of the

individual named parties only.” Califano v. Yamasaki,

442 U.S. 682, 700–701 (1979). In order to justify a

departure from that rule, “a class representative must

be part of the class and ‘possess the same interest and

suffer the same injury’ as the class members.” East

Tex. Motor Freight System, Inc. v. Rodriguez, 431 U.S.

395, 403 (1977)(quoting Schlesinger v. Reservists Comm.

to Stop the War, 418 U.S. 208, 216 (1974)). Rule 23(a)

ensures that the named plaintiffs are appropriate

representatives of the class whose claims they wish to

litigate. The Rule's four requirements — numerosity,

commonality, typicality, and adequate representation —

“effectively ‘limit the class claims to those fairly

encompassed by the named plaintiff's claims.’” General

Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 156

(1982)(quoting General Telephone Co. of Northwest v.

EEOC, 446 U.S. 318, 330 (1980)).

564 U.S. 338, 348 (2011).

The decision to grant or to deny class certification is

within the discretion of the trial court. Bateman v. Am. MultiCinema, Inc., 623 F.3d 708, 712 (9th Cir. 2010). The plaintiff

8 - OPINION AND ORDER

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has the burden to comply with Rule 23. Narouz v. Charter

Commc’ns, LLC, 591 F.3d 1261, 1266 (9th Cir. 2010). A class may

be certified only if the court is satisfied "after a rigorous

analysis that the prerequisites of Rule 23(a) have been

satisfied." Wal-Mart, 564 U.S. at 350-51 (citing Gen. Tel. Co.

of S.W. v. Falcon, 457 U.S. 147, 161 (1982)). A class may be

certified as to one or more claims without certifying the entire

complaint. Fed. R. Civ. P. 23(c)(4). 

The court must determine whether certification is based on

actual as opposed to presumed compliance with the requirements of

Rule 23. Wal-Mart, 564 U.S. at 350 (citing Falcon, 457 U.S. at

160). Because Rule 23 “is not a mere pleading standard,” a party

seeking class certification “must affirmatively demonstrate

compliance with the Rule.” Wal-Mart, 564 U.S. at 351. This

inquiry may in some cases overlap into the “merits of plaintiff’s

underlying claim” because “class determination generally involves

considerations that are enmeshed in the factual and legal issues

comprising plaintiff’s cause of action.” Id. (quoting Falcon,

457 U.S. at 160).

“Parties seeking class certification bear the burden of

demonstrating that they have met each of the requirements of

Federal Rule of Civil Procedure 23(a) and at least one of the

requirements of Rule 23(b).” Ellis v. Costco Wholesale Corp.,

657 F.3d 970, 979–80 (9th Cir. 2011)(citation omitted). 

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DISCUSSION

Plaintiff proposes to bring this action against ViSalus for

violation of the TCPA on behalf of several classes. ViSalus,

however, opposes certification of each proposed class on the

ground that Plaintiff has not satisfied the requirements of 

Rule 23. 

I. Telephone Consumer Protection Act (TCPA)

Under the TCPA it is unlawful for any person “to make any

call (other than a call made for emergency purposes or made with

the prior express consent of the called party) using any

automatic telephone dialing system or an artificial or

prerecorded voice . . . to any telephone number assigned to a 

. . . cellular telephone service” or “to initiate any telephone

call to any residential telephone line using an artificial or

prerecorded voice to deliver a message without the prior express

consent of the called party.” 47 U.S.C. § 227(b)(1)(A),(B). In

addition, the TCPA allows a private right of action for a person

“who has received more than one telephone call within any 

12-month period by or on behalf of the same entity” in violation

of the TCPA if the person’s number was listed on the National

“Do-Not-Call” Registry. 47 U.S.C. § 227(c)(5).

Oregon law similarly provides a person engages in an

unlawful practice “if, during a telephone solicitation, the

called party states a desire not to be called again and the

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person making the telephone solicitation makes a subsequent

telephone solicitation of the called party at that number.” 

Or. Rev. Stats. § 646.563. 

II. The Robocall Class

ViSalus contends the Robocall Class should not be certified

on the grounds that (1) individual class members lack standing,

(2) the class definition is over-inclusive because it includes

members who were not harmed, (3) the class does not meet

superiority and predominance requirements of Rule 23(b)(3), and

(4) certification would result in denial of procedural fairness

and have an undesirable result.

A. Standing

ViSalus contends the Robocall Class cannot be certified

on the grounds that standing for each class member cannot be

determined based on common proof due to the individualized nature

of each class member’s injuries. ViSalus argues each class

member must be shown to have suffered an “injury-in-fact” and

such injury does not exist based merely on the use of an

autodialer.

Plaintiff, in turn, contends unsolicited contact

without any additional harm is sufficient to confer standing

under the TCPA, that Plaintiff has standing because she alleges

such a violation, and that Plaintiff’s standing alone is

sufficient to support class certification.

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In Bates v. UPS the Ninth Circuit stated:

In a class action, standing is satisfied if

at least one named plaintiff meets the

requirements. See Armstrong v. Davis, 275

F.3d 849, 860 (9th Cir. 2001). The plaintiff

class bears the burden of showing that the

Article III standing requirements are met. 

See id. at 860–61. As we know from the oftrepeated passages in Lujan, standing requires

that (1) the plaintiff suffered an injury in

fact, i.e., one that is sufficiently

“concrete and particularized” and “actual or

imminent, not conjectural or hypothetical,” 

(2) the injury is “fairly traceable” to the

challenged conduct, and (3) the injury is “likely”

to be “redressed by a favorable decision.” Lujan

v. Defenders of Wildlife, 504 U.S. 555 (1992)

(quotation marks and citations omitted). 

511 F.3d 974, 985 (9th Cir. 2007). The requirement of standing

is satisfied if at least one named plaintiff meets the

requirements of Article III standing. Fox-Quamme v. Health Net

Health Plan of Oregon, Inc., 2017 WL 1034202, at *4 (D. Or. Mar.

9, 2017)(citing Bates v. UPS, 511 F.3d 974, 985 (9th Cir. 2007)).

In Van Patten v. Vertical Fitness Group, LLC, the Ninth

Circuit held the “[u]nsolicited telemarketing phone calls or text

messages, by their nature, invade the privacy and disturb the

solitude of their recipients. A plaintiff alleging violation

under the TCPA ‘need not allege any additional harm beyond the

one Congress identified.’” 847 F.3d 1037, 1043 (9th Cir.

2017)(quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549

(2016))(emphasis in original). The court noted:

The TCPA establishes the substantive right to be

free from certain types of phone calls and texts

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absent consumer consent. Congress identified

unsolicited contact as a concrete harm, and gave

consumers a means to redress this harm. We

recognize that Congress has some permissible role

in elevating concrete, de facto injuries

previously inadequate in law “to the statute of

legally cognizable injuries.” Citation omitted.

847 F.3d at 1043.

Here Plaintiff alleges she, in addition to other

members of the class, received unsolicited telemarketing calls

from ViSalus using an autodialer system in violation of the TCPA. 

On this record the Court concludes Plaintiff 

sufficiently alleges an injury for purposes of standing, and,

therefore, Plaintiff may maintain this action on behalf of

herself and putative class members. 

B. Over-Inclusive

ViSalus contends the Robocall Class is over-inclusive

on the grounds that it includes uninjured members who did not

answer the calls or did not receive a prerecorded message and

such members are not a de minimis portion of the class. See In

re Lidoderm Antitrust Litig., No. 14-MD-02521-WHO, 2017 WL

679367, at *11 (N.D. Cal. Feb. 21, 2017)(finding overinclusiveness, including plaintiffs who were not harmed in the

class definition, “would not defeat class certification as long

as the uninjured parties represent a de minimis portion of the

class”). See also In re Nexium Antitrust Litig., 777 F.3d 9, 25

(1st Cir. 2015)(“We think that a certified class may include a de

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minimis number of potentially uninjured parties.”).

Plaintiff contends the de minimis requirement applies

to Plaintiff’s theory of liability rather than to the number of

members in the class. Thus, as long as the class definition is

“reasonably co-extensive with [p]laintiff’s chosen theory of

liability,” it is not over-inclusive even if it includes some

members who did not sustain any injury. See Torres v. Mercer

Canyons Inc., 835 F.3d 1125, 1136-37 (9th Cir. 2016).

In Torres the Ninth Circuit noted “even a well-defined

class may inevitably contain some individuals who have suffered

no harm as a result of a defendant’s unlawful conduct.” Id. at

1136. The court held inclusion of uninjured members in the class

did not defeat the class certification. Id. Instead the court

concluded members’ injuries constituted a merits dispute

regarding the scope of liability rather than an issue for

resolution at the class-certification stage. Id. at 1136-37.

Here the Robocall Class definition includes persons

“who received a telephone call . . . promoting products or

services . . . [using] an artificial or prerecorded voice . . .

[without] prior express written consent” and is consistent with

Plaintiff’s theory of violation of the TCPA. Thus, pursuant to

Torres, the possibility that some members within the class may

not have sustained injury does not preclude certification of the

class. 

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On this record the Court concludes the Robocall Class

is not over-inclusive.

C. Predominance and Superiority Requirements

The predominance element of Rule 23 “tests whether

proposed classes are sufficiently cohesive to warrant

adjudication by representation.” Amchem Prods., Inc. v. Windsor,

521 U.S. 591, 615 (1997). A “central concern of the Rule

23(b)(3) predominance test is whether ‘adjudication of common

issues will help achieve judicial economy.’” Vinole v.

Countrywide Home Loans, Inc., 571 F.3d 935, 944 (9th Cir.

2009)(quoting Zinser v. Accufix Research Inst., Inc., 253 F.3d

1180, 1189 (9th Cir. 2001)). The predominance inquiry imposes on

the Court the “duty to take a ‘close look’ at whether common

questions predominate over individual ones.” Comcast Corp. v.

Behrend, 133 S. Ct. 1426, 1432 (2013). The superiority element

requires courts to consider the “likely difficulties in managing

a class action” when evaluating whether a class action is

superior to other methods of adjudication. Fed. R. Civ. P.

23(b)(3)(D).

ViSalus contends Plaintiff fails to meet the

predominance and superiority requirements of Rule 23(b)(3) on the

ground that the proposed class is “unmanageable” because there is

not an “objective” way to reliably identify class members.

In response Plaintiff contends ViSalus is attempting to

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argue an “ascertainability” requirement, which the Ninth Circuit

rejected in Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (2017). 

In any event, Plaintiff asserts she has objectively defined the

Robocall Class based on ViSalus’s conduct.

In Briseno v. ConAgra Foods, Inc., the Ninth Circuit

held class proponents are not required to demonstrate that there

is an administratively feasible way to determine who is in the

class in order for the class to be certified. 844 F.3d at 1133. 

The court noted “a separate administrative feasibility

prerequisite to class certification is not compatible with the

language of Rule 23.” Id. at 1123. The appeals court upheld the

district court’s determination that it was sufficient at the

certification stage for the class to be defined by an objective

criterion; i.e., purchase of the defendant’s product during the

class period in that case. Id. at 1124.

Here members of the Robocall Class are defined as any

individuals who received calls from ViSalus promoting products or

services that featured an artificial voice or prerecorded voice

when there was not any record of prior express consent to receive

such a call. Accordingly, the Court concludes the Robocall Class

definition reflects an objective criterion for determining class

members and is appropriate at the certification stage.

The Robocall Class also seeks to hold ViSalus liable

for telemarketing calls using an artificial or prerecorded

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message without prior express consent in violation of the TCPA. 

The individual issues of damages and express consent, however,

are not determinative at the certification stage. 

Accordingly, the Court concludes adjudication of issues

common to Robocall Class members predominate over individual

class-member issues.

D. Superiority Requirement, Procedural Fairness, and

Undesirable Results

ViSalus contends certification of the Robocall Class

does not meet the superiority requirement of Rule 23(b)(3), will

sacrifice procedural fairness, and will result in an undesirable

damage award. See Kamm v. Cal. City Dev. Co., 509 F.2d 205, 211

(9th Cir. 1975). ViSalus argues Plaintiff and putative class

members suffered little or no harm compared to the potentially

significant and disproportionate award of statutory damages

against ViSalus, which could be in the billions of dollars and

could put ViSalus out of business.

Plaintiff contends she has met the requirements of 

Rule 23, and the possibility of a significant damages award

should not be the basis for the Court to deny class

certification. 

Although Plaintiff does not seek a specific amount of

damages, the TCPA provides for statutory damages of between $500

and $1,500 for willful violations. In addition, the Advisory

Committee Notes to Rule 23 provide:

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Subdivision (b)(3) encompasses those cases in

which a class action would achieve economies of

time, effort, and expense, and promote uniformity

of decisions as to persons similarly situated,

without sacrificing procedural fairness or

bringing about other undesirable results.

39 F.R.D. 69, at 102-03.

In Bateman v. American Multi-Cinema, Inc., 623 F.3d 708

(9th Cir. 2010), the plaintiff filed a class-action complaint

against the defendant for violating the Fair and Accurate Credit

Transactions Act by printing more than the last five digits of

the consumer’s credit or debit card number on receipts. The

statutory provision allowed consumers to recover damages between

$100 and $1,000 for each willful violation without having to

prove actual damages. The district court denied the plaintiff’s

motion for class certification on the grounds that the proposed

class failed to meet the “superiority requirements” of Rule

23(b)(3); i.e., the district court determined class treatment

would render the magnitude of the defendant’s potential liability

“enormous and completely out of proportion to any harm suffered”

by the plaintiff. The Ninth Circuit reversed that decision and

held the enormity of damages under the statutory scheme and any

disproportionality between the potential damages and the actual

harm suffered did not justify denial of class certification on

superiority grounds. 623 F.3d at 723.

Based on Bateman, this Court concludes the superiority

requirements of Rule 23(b)(3) and procedural fairness are

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satisfied, and the potential enormity or disproportionality of

damages does not constitute a proper basis to deny class

certification under these circumstances.

In summary, the Court concludes Plaintiff has met the

requirements of Rule 23 at this stage of the case and GRANTS

Plaintiff’s Motion for certification of the Robocall Class.

III. The Do-Not-Call Class

ViSalus contends the Do-Not-Call Class should not be

certified on the grounds that (1) the class definition is overinclusive, (2) common questions of law or fact are lacking and

individual issues predominate, (3) there is not any proof of

numerosity, and (4) superiority and predominance under Rule

23(b)(3) are lacking.

A. Over-Inclusive

A person who has registered their number on the

National Registry and “received more than one telephone call

within any 12-month period” from the same entity may seek

recovery of damages under the TCPA. Under 47 C.F.R. 

§ 64.1200(f)(5), however, a business may call the telephone

number of a person on the National Registry if the person has

made an “inquiry or application regarding products or services

offered by the entity within the three months immediately

preceding the date of the call.”

ViSalus contends the Do-Not-Call Class is over19 - OPINION AND ORDER

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inclusive as it includes individuals who, although their

telephone numbers were registered on the National Do-Not-Call

Registry, made “an inquiry or submitted an application” to

ViSalus within the three months before the call, and, therefore,

were not called in violation of the TCPA. ViSalus also contends

the number of those persons is more than de minimis.

Plaintiff, however, contends the class definition

specifically excludes individuals who “entered into any purchase

or transaction with ViSalus within the 18 months immediately

preceding” a call from ViSalus and, therefore, would exclude

persons who made an inquiry or submitted an application within

the three months before such call. 

Plaintiff’s exclusion of persons “who made purchases or

transactions” with ViSalus during the preceding 18 months,

however, does not equate with the regulation’s exemption of

persons “who made an inquiry or application” in the three months

prior to the call. Thus, it is arguable that Plaintiff’s class

definition could include persons who were not called in violation

of the TCPA. Nevertheless, as previously noted, “even a welldefined class may inevitably contain some individuals who have

suffered no harm as a result of a defendant’s unlawful conduct.” 

See Torres v. Mercer Canyons Inc., 835 F.3d 1125, 1136-37 (9th

Cir. 2016). Thus, the Torres court held inclusion of uninjured

members in the class does not necessarily defeat class

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certification. Id. 

On this record the Court concludes at this time under

these circumstances that the Do-Not-Call Class definition is not

overly inclusive.

B. Commonality and Predominance

Commonality requires claims to “depend upon a common

contention . . . of such a nature that it is capable of classwide

resolution – which means that determination of its truth or

falsity will resolve an issue that is central to the validity of

each one of the claims in one stroke.” Wal-Mart Stores v. Dukes,

564 U.S. 338, 350 (2011). As noted, even unsolicited contact

without any additional harm constitutes an infringement on

privacy and violates the TCPA. Van Patten, 847 F.3d at 1043.

ViSalus contends individual issues predominate in the

Do-Not-Call Class. ViSalus asserts the Court will be required to

determine for each class member when they registered their number

with the National Registry, when they provided their number to

ViSalus for some reason, and when the calls were made. ViSalus

contends this information cannot be objectively determined from

its records.

Plaintiff, however, contends the class claims are based

on the common contention that ViSalus violated the TCPA by making

calls to persons whose numbers were on the National Registry. 

Plaintiff seeks to hold ViSalus liable for calls made in

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violation of the TCPA to her and to putative class members whose

numbers were registered on the National Registry. Plaintiff

contends even though ViSalus is not precluded from litigating any

affirmative defense of consent or the existence of a business

relationship, such evidence does not prevent class certification. 

On this record the Court concludes Plaintiff has

established a common question capable of classwide resolution.

C. Numerosity

 Rule 23(a)(1) does not provide a bright-line test or

minimum number of class members necessary to meet the numerosity

requirement. Instead the Court must evaluate the specific facts

of each case. General Tel. Co. of the Northwest, Inc. v. Equal

Employment Opportunity Comm'n, 446 U.S. 318, 330 (1980). In

general, classes of 15 members or fewer are too small and classes

of 16 to 39 members may or may not be sufficiently numerous 

depending on the facts of the case. Id. In this district there

is a “rough rule of thumb” that 40 class members is sufficient to

meet the numerosity requirement. See, e.g., Giles v. St. Charles

Health Sys., Inc., 294 F.R.D. 585, 590 (D. Or. 2013); Rannis v.

Recchia, 380 F. App'x 646, 651 (9th Cir. 2010)

“A party seeking class certification must affirmatively

demonstrate his compliance with the Rule - that is, he must be

prepared to prove that there are in fact sufficiently numerous

parties. . . .” Wal-Mart Stores v. Dukes, 564 U.S. 338, 350

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(2011)(emphasis in original). The plaintiff must provide

“reliable evidence” to show the number of potential members of

the class. Smith v. City of Corvallis, No. 6:14-cv-01382, 2016

WL 3193190, at *10 (D. Or. June 6, 2016). 

ViSalus contends Plaintiff cannot establish proof of

the number of individuals on the National Registry who received

calls nor that an exception does not apply to the majority of

calls made by ViSalus.

Plaintiff, however, contends in light of the millions

of calls that ViSalus made and the number of Americans who have

registered on the National Registry, the Court may easily

conclude ViSalus called at least 40 people in violation of the

TCPA. Specifically, Plaintiff alleges:

{ViSalus] and/or its Representatives placed

thousands of outbound telemarketing calls each to

consumers nationwide. Many of these calls were 

placed to numbers that are listed on the National

Do Not Call Registry.

. . .

The exact sizes of the Classes are unknown and not

available to Plaintiff at this time, but it is

clear that individual joinder is impracticable. 

On information and belief, [ViSalus] has made

calls to thousands of consumers who fall into each

of the Classes. Members of the Classes can be

identified through [ViSalus]’s records.

FAC ¶¶ 15, 29.

Plaintiff notes in her Renewed Motion for Class

Certification:

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To be sure, ViSalus produced nearly one thousand

contact lists, collectively containing names and

telephone numbers of [redacted information].4

[(Citations omitted)]. As such, this fact alone

makes it “reasonable” to estimate that each of the

Classes are sufficiently numerous. [Citation

omitted].

. . .

Next, given that approximately 72% of Americans

have registered their numbers on the National DNC

Registry, and ViSalus admits to placing more than

a [redacted information] of people [citation

omitted], there can be no doubt that there are

well over forty class members in the Do Not Call

Class as well.

Pl.’s Renewed Mot. (#69) at 17-18. These statements, however, do

not affirmatively establish by “reliable evidence” that “there

are in fact sufficiently numerous parties” who have suffered a

violation of the TCPA. In fact, Plaintiff has merely shown a

large category of individuals are listed on the National Registry

who may have received calls from ViSalus. 

On this record the Court concludes Plaintiff has not

provided reliable evidence to show the number of potential

members of the class. Accordingly, the Court DENIES Plaintiff’s

Motion to certify the Do-Not-Call Class.5

4

 Plaintiff redacted various information in its Motion

pursuant to the terms of the Protective Order (#49) issued by the

Court. Because that information is not part of the public

record, the Court also excludes it from this Opinion.

5 ViSalus also contends the Do-Not-Call Class does not meet

the requirements of Rule 23(b)(3). Inasmuch as the Court has

concluded Plaintiff has not established “numerosity” for this

Class, the Court need not address this issue.

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IV. The Oregon Stop-Calling Class

ViSalus contends the Oregon Stop-Calling Class does not meet

the requirements of Rule 23 on the grounds that (1) Plaintiff has

not established commonality or the predominance of issues, 

(2) Plaintiff’s claim is not typical of class claims, and 

(3) Plaintiff has not demonstrated numerosity.

A. Commonality and Predominance

As noted, commonality requires claims to “depend upon a

common contention . . . of such a nature that it is capable of

classwide resolution – which means that determination of its

truth or falsity will resolve an issue that is central to the

validity of each one of the claims in one stroke.” Wal-Mart

Stores v. Dukes, 564 U.S. 338, 350 (2011). “[T]his provision

requires Plaintiff to ‘demonstrate that the class members have

suffered the same injury,’ not merely violations of ‘the same

provision of law.’” Parsons v. Ryan, 754 F.3d 657, 674-75 (9th

Cir. 2014)(citing Wal-Mart, 563 U.S. at 349).

ViSalus contends there is not any evidence that ViSalus

disregarded requests by individuals to stop calling. ViSalus

argues it did not include the telephone numbers on its call lists

for persons who had requested not to be contacted, and,

therefore, Plaintiff has not established a common question for

class resolution.

Plaintiff, however, contends ViSalus did not adhere to

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its own do-not-call policy and continued to call her and other

putative class members despite requests that ViSalus stop making

such calls.

The central issue for this Class is whether ViSalus

continued to call a person after that person requested ViSalus to

stop calling. Although the issue can be resolved as to

Plaintiff’s individual claim, there is not any common evidence

that certain individuals made such a request, and, therefore,

this issue cannot be resolved on a class-wide basis due to the

individual nature of the inquiry.

The Court, therefore, concludes there is not any 

commonality of claims sufficient to certify the Oregon StopCalling Class. Accordingly, the Court DENIES Plaintiff’s Motion

to certify the Oregon-Stop-Calling Class.6

CONCLUSION

For these reasons, the Court GRANTS in part and DENIES in

part Plaintiff’s Renewed Motion (#69) for Class Certification as

follows: 

1. The Court GRANTS Plaintiff’s unopposed request to be

appointed as class representative; 

6 Inasmuch as the Court has concluded Plaintiff has not

established commonality for this Class, the Court need not

address ViSalus’s other contentions.

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2. The Court GRANTS Plaintiff’s unopposed request for her

attorneys to be appointed as class counsel;

3. The Court GRANTS Plaintiff’s Renewed Motion for Class

Certification as to the Robocall Class only; and

4. The Court DENIES Plaintiff’s Renewed Motion for Class

Certification as to the Do-Not-Call Class and the Oregon StopCalling Class.

The Court directs the parties to confer and to submit a

Joint Status Report no later than July 24, 2017, summarizing the

issues that remain for resolution together with a jointly

proposed case-management schedule for doing so. 

IT IS SO ORDERED.

DATED this 23rd day of June, 2017.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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