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 a class of others similarly 

situated, 

Plaintiff,

 v.

VISALUS, INC., 

a Nevada corporation,

Defendant.

No. 3:15-cv-01857-SI

Reply in Support of Motion for 

Attorneys’ Fees under Fed. R. Civ. 

P. 23(h) and Fed. R. Civ. P. 54(d)(2)

and an Incentive Award.
EDELSON PC

Rafey S. Balabanian, ILB #6285687*

rbalabanian@edelson.com

Eve-Lynn J. Rapp, ILB #6300632*

erapp@edelson.com

J. Aaron Lawson, Cal. Bar #319306*

alawson@edelson.com

Lily E. Hough, Cal. Bar #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
Reply In Support of Motion for 

Attorneys’ Fees and Incentive Award 

1

 Beyond decrying Plaintiff’s request for this Circuit’s benchmark fee award as 

“outlandish,” ViSalus provides only a facile opposition to Plaintiff’s requested attorneys’ fees 

and service award. Unless ViSalus has repeatedly misrepresented its financials, the Class will 

receive far less than the $925 million judgment and Class Counsel will receive fees in proportion 

to what aggregate amount is eventually recovered through settlement or bankruptcy. As for what 

Class Counsel’s proportionate share should ultimately end up being, an award consistent with the 

benchmark in the Ninth Circuit is most appropriate here. Regardless, when analyzing the 

appropriateness of class counsel’s request, the Court should employ the percentage of the fund 

method, the prevailing method in the Ninth Circuit. The percentage method appropriately 

incentivizes and rewards counsel for their efforts to maximize the recovery for the Class, as 

should be the goal in litigation of this sort. And, while ViSalus pleads for the Court to utilize the 

lodestar method for calculating fees, it fails to cite any legal authority that calls for the Court to 

deviate from the percentage method in favor of the lodestar. 

Ultimately, the Court’s fee award should ensure that the incentives of the class and class 

counsel are aligned and stay aligned for future cases. Applying the percentage method and 

awarding the Ninth Circuit’s benchmark of 25% of the recovery the class achieves would 

accomplish those ends. And, Ninth Circuit precedent undoubtedly supports such an outcome. 

Defendant’s half-hearted and barely developed arguments to the contrary should be rejected. 

I. A benchmark fee award is appropriate. 

 Ninth Circuit precedent establishes a benchmark fee award of 25% of any common fund 

created in a class action. See Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1048 (9th Cir. 2002). 

Precedent from the Ninth Circuit and this Court also establishes several factors that are relevant 

to determining what constitutes a reasonable fee award: 
Reply In Support of Motion for 

Attorneys’ Fees and Incentive Award 

2

(1) the results obtained; (2) the risks involved in the litigation; (3) counsel's skill 

and the complexity of the issues; (4) the effort expended by counsel; (5) the reaction 

of the class; (6) non-monetary or incidental benefits, including helping similarly 

situated persons nationwide by clarifying certain laws; (7) awards in similar cases; 

and (8) comparison with counsel’s lodestar. 

Demmings v. KKW Trucking, Inc., No. 3:14-cv-0494-SI, 2018 WL 4495461, at *13 (D. Or. Sept. 

19, 2018). Factor 5 concerns reaction to the value of a settlement negotiated by counsel and so is 

inapplicable here because this case does not involve a settlement. And factor 6 is neutral because 

the litigation here bore only monetary benefits. See Azar v. Blount Int’l, Inc., No. 3:16-cv-0483-

SI, 2019 WL 7372658, at *11 (D. Or. Dec. 31, 2019). As Wakefield explained in her petition for 

fees, the results obtained, risks faced, counsel’s skill, effort expended by counsel, and awards in 

similar cases all militate in favor of an above-benchmark award. (Dkt. 388, at 7-13.) Plaintiff 

recognized, however, that counsel’s lodestar would not support an upward deviation from the 

benchmark. That said, an award of the benchmark fee doesn’t require a crosscheck and there is 

ample support for it on this record. (Id.) The fact of the matter is, and ViSalus does not argue 

otherwise, that Wakefield retained skilled counsel with deep experience in TCPA litigation and 

in trying complex cases, who achieved the largest TCPA verdict in history on behalf of a 

certified class. In both of the recent TCPA class actions to go to trial, the courts awarded the 

lawyers one-third of the total verdict. Here, too, a percentage award is appropriate, but in 

recognition of the Ninth Circuit’s benchmark, Plaintiff asks for an award to Class Counsel of 

25%. 

ViSalus’s opposition to the requested benchmark fee award rests principally on two 

points: Winning a TCPA case at trial is “not exceptional,” and the effective multiplier when 

performing a lodestar crosscheck here is too high. (Dkt. 412 at 1-4.) To be clear, these points 

address factors 1 and 8 in the reasonableness analysis. ViSalus has therefore waived any 
Reply In Support of Motion for 

Attorneys’ Fees and Incentive Award 

3

argument that the remaining factors do not support an above-benchmark award. See LN Mgmt., 

LLC v. JPMorgan Chase Bank, N.A., 957 F.3d 943, 950 (9th Cir. 2020) (“Failure to respond 

meaningfully in an answering brief to [a party’s] argument waives any point to the contrary.”). 

 Regarding the arguments ViSalus does make, ViSalus’s decision to downplay the results 

achieved by Class Counsel is disappointing, though understandable. After all, ViSalus’s lawyers 

were on the other side of this defeat. One can hardly expect them to agree that a trial victory is 

everything it’s cracked up to be. But, of course, it is. Any trial necessarily involves significant 

uncertainty and substantial risk. ViSalus highlights that the trial lasted “only” three days, but 

that’s true in substantial part because of ViSalus’s own strategic decisions to, for example, not 

call any witnesses. It would be bizarre to essentially penalize the winning side for ViSalus’s own 

error. Deciding to take a case to trial, and then to navigate the resulting minefield, leads, and has 

led, to outstanding results. 

 Moreover, ViSalus’s attempt to diminish any TCPA victory at trial (“Plaintiff simply 

established calls in violation of the TCPA”) (Dkt. 412 at 1), is at odds with reality: If it were so 

easy to win TCPA trials, then most TCPA cases would not settle for pennies on the dollar, which 

most do. This argument also fails to account for either of the two recent TCPA class action trials, 

Krakauer v. DISH Network and Perez v. Rash Curtis & Associates, both of which go 

unmentioned in ViSalus’s brief. As Wakefield previously explained, after the lawyers in those 

cases “established calls in violation of the TCPA,” the respective courts recognized this as a 

significant achievement for the two certified classes, and awarded the lawyers one-third of the 

funds created by the verdicts. Perez, 4:16-cv-3396, 2020 WL 1904533, at *17 (N.D. Cal. Apr. 

17, 2020); Krakauer, 1:14-cv-333, 2018 WL 6305785, at *5 (M.D.N.C. Dec. 3, 2018). ViSalus 

cannot explain why such awards were appropriate in those cases, but an award of only 3.8% is 
Reply In Support of Motion for 

Attorneys’ Fees and Incentive Award 

4

appropriate here. And ViSalus makes no attempt to argue that such a drastic departure from the 

benchmark would be warranted here, because it plainly is not. 

 ViSalus does, however, make an undeveloped plea for application of the lodestar, rather 

than percentage, method for calculating the fee. But a lodestar award would not comport with the 

goal of achieving a “reasonable” fee. Reasonableness is not measured in a vacuum. In setting a 

fee award, “courts try to ensure faithful representation by tying together the interests of class 

members and class counsel.” In re HP Inkjet Printer Litig., 716 F.3d 1173, 1178 (9th Cir. 2016);

see also Kirchoff v. Flynn, 786 F.2d 320, 325-26 (7th Cir. 1986) (Easterbrook, J.) (“The 

contingent fee uses private incentives rather than careful monitoring to align the interests of 

lawyer and client. The lawyer gains only to the extent his client gains . . . . The unscrupulous 

lawyer paid by the hour may be willing to settle for a lower recovery coupled with a payment for 

more hours. Contingent fees eliminate this incentive and also ensure a reasonable proportion 

between the recovery and the fees assessed to defendants . . . . At the same time as it 

automatically aligns interests of lawyer and client, rewards exceptional success, and penalizes 

failure, the contingent fee automatically handles compensation for the uncertainty of litigation.”). 

Courts typically achieve that by “tether[ing] the value of an attorneys’ fees award to the value of 

the class recovery.” In re HP Inkjet Printer Litig., 716 F.3d at 1178. 

As such, “the use of the percentage-of-the-fund method in common-fund cases is the 

prevailing practice in the Ninth Circuit for awarding attorneys’ fees.” In re Korean Air Lines Co., 

Ltd. Antitrust Litig., No. CV 07-05107 SJO AGRX, 2013 WL 7985367, at *1 (C.D. Cal. Dec. 23, 

2013). And, it makes sense because where a fee is negotiated in advance, most high-value 

plaintiff’s litigation is performed on a contingency basis in which the lawyers recover a 

percentage of recovery for their services. See David L. Schwartz, The Rise of Contingent Fee 
Reply In Support of Motion for 

Attorneys’ Fees and Incentive Award 

5

Representation in Patent Litigation, 64 ALA. L. REV. 335, 360 (2012). Moreover, the percentage 

method is virtually always applied in TCPA cases. See Ikuseghan v. Multicare Health Sys., No. 

C14-5539, 2016 WL 4363198, at *2 (W.D. Wash. Aug. 16, 2016). In the end, ViSalus offers no 

legal justification for why a lodestar award is preferable in this instance. The Court should 

therefore decline to deviate from the Ninth Circuit’s stated preference of the percentage method. 

A lodestar award here is also particularly inappropriate given that Class Counsel is not 

finished investing time and resources into this case. Class Counsel will no doubt spend hundreds 

if not thousands of hours helping class members through the claims process, and defending the 

judgment on appeal. In fact, just since the filing of their original fee brief, Class Counsel has 

already expended time responding to ViSalus’s array of post-trial arguments and ensuring that 

the post-trial notice and claims process is fair and comports with the requirements of Fed. R. Civ. 

P. 23 and Due Process. (See, e.g., Dkts. 396, 408.) A lodestar award would unfairly prevent 

Class Counsel from being compensated at all for that time. See In re Volkswagen “Clean Diesel” 

Mktg., Sales Practices, and Prods. Liab. Litig., 746 F. App'x 655, 659 (9th Cir. 2018) (holding 

that “[t]he district court did not err in including projected time in its lodestar cross-check; the 

court reasonably concluded that class counsel would, among other things, defend against appeals 

and assist in implementing the settlement”). 

 Finally, ViSalus focuses on the remote possibility that the size of the requested award 

will exceed $231 million should an aggregate common fund for the Class actually be established 

for the full judgment amount. But as Wakefield noted in her request for fees, this adopts the 

fiction that such an amount will be recovered and that the full award survives bankruptcy or a 

that a settlement for a lesser amount is not reached. While Wakefield agrees that the aggregate 

amount of whatever pot of money is made available to class members is the correct denominator 
Reply In Support of Motion for 

Attorneys’ Fees and Incentive Award 

6

from which to calculate the percentage, Class Counsel will undoubtedly be receiving fees from a 

much smaller pot than the judgment amount (if any amount of money is recovered at all). That’s 

why Wakefield sought a percentage award. Such an award not only acknowledges the success 

Class Counsel already has achieved for the Class, it also appropriately incentivizes Class 

Counsel to continue working to maximize the amount the Class recovers during the claims 

process, on appeal, or in a bankruptcy proceeding. Wakefield’s lawyers should be awarded 25% 

of the aggregate fund recovered for the benefit of the Class. ViSalus’ “going-through-themotions” arguments to the contrary should be summarily rejected. 

II. The requested service award should be granted 

 ViSalus makes two arguments in opposition to Wakefield’s requested service award. The 

first, which appears to be simply an attempt to preserve an argument for appeal, is that service 

awards are impermissible. (Dkt. 412, at 3-4 (relying on Johnson v. NPAS, 975 F.3d 1244 (11th 

Cir. 2020).) But service awards have been approved in the Ninth Circuit. See Staton v. Boeing 

Co., 327 F.3d 938, 977 (9th Cir. 2003) (“Nevertheless, named plaintiffs, as opposed to 

designated class members who are not named plaintiffs, are eligible for reasonable incentive 

payments.”). Indeed, by 2009 the Ninth Circuit had recognized that “incentive awards are fairly 

typical in class action cases.” Rodriguez v. West Publ’g Corp., 563 F.3d 948, 958 (9th Cir. 2009). 

The Court should follow that precedent here. See Somogyi v. Freedom Mortg. Corp., No. 17-

6546 (RMB/JS), 2020 WL 6146875, at *9 (D.N.J. Oct. 20, 2020) (disagreeing with Johnson

because “there is substantial precedent from [the Third] Circuit supporting approval of incentive 

payments”). 

 The second argument attacks the size of the requested award. ViSalus contends that an 

appropriate award is $2,500. In addition to continuing to downplay the success achieved on 
Reply In Support of Motion for 

Attorneys’ Fees and Incentive Award 

7

behalf of the Class, ViSalus now also demeans Wakefield’s participation in the lawsuit. But 

Wakefield’s service to the Class was not “pedestrian.” As Wakefield explained in her 

declaration, she was extensively involved with the case, keeping up to date with key details, and 

invested substantial time preparing for trial, including going over the evidence in detail with her 

lawyers, sitting for a mock examination, meeting with her lawyers 12 times prior to trial, and 

ultimately taking the witness stand on behalf of the absent class. (Dkt. 394.) This type of 

involvement from a named plaintiff is anything but “pedestrian.” 

 Indeed, ViSalus’s strained analogy to Bell v. Consumer Cellular, Inc., No. 3:15-cv-941-

SI, 2017 WL 2672073 (D. Or. June 21, 2017), shows how wrongheaded its argument is. The 

plaintiff in Bell provided counsel with documentation that allowed it to pursue the case, 

answered follow-up questions from counsel, and attended a mediation. Id. at *8-9. No doubt this 

was valuable service to the putative class in that case. But it pales in comparison to the efforts 

undertaken by Wakefield here. Wakefield sat for a deposition and gave trial testimony in this 

case, both of which were key to allowing the Class to recover here. Given Bell as a relevant data 

point, Wakefield quite clearly deserves much more than $2,500 for her efforts on behalf of the 

Class. 

As another district court has observed, incentive awards of $25,000 to $35,000 fall 

“solidly in the middle of the range” of awards given to representatives “across a variety of class 

actions.” McBean v. City of New York, 233 F.R.D. 377, 391 (S.D.N.Y. 2006). Indeed, Wakefield 

provided several examples of even larger such awards in cases in which representative plaintiffs 

had been critical in helping to achieve outstanding results on behalf of the classes they represent. 

(See Dkt. 388 at 14.) As those cases show, when a representative plaintiff contributes 
Reply In Support of Motion for 

Attorneys’ Fees and Incentive Award 

8

significantly to a favorable result for an absent class, courts have not hesitated to award them 

$50,000 for their service. That sounds about right here too. 

CONCLUSION 

 Plaintiff and Class Counsel respectfully request that the Court grant the requested fees 

and service award. 

Respectfully submitted, 

LORI WAKEFIELD, individually and on behalf 

of all similarly situated individuals, 

Dated: November 12, 2020 /s/J. Aaron Lawson 

Rafey S. Balabanian, ILB #6285687*

rbalabanian@edelson.com

Eve-Lynn J. Rapp, ILB #6300632*

erapp@edelson.com 

J. Aaron Lawson, Cal. Bar # 319306* 

alawson@edelson.com 

Lily E. Hough, Cal. Bar #315277*

EDELSON PC

123 Townsend Street, Suite 100

San Francisco, California 94107

Tel: 415.212.9300

Fax: 415.373.9435 

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 

DOVEL & LUNER, LLP 

201 Santa Monica Blvd., Suite 600 

Santa Monica, California 90401 

Tel: (310) 656-7066 

Fax: (310) 656-7069 

Scott F. Kocher, OSB#015088 

Stephen J. Voorhees, OSB#150595 

FORUM LAW GROUP
Reply In Support of Motion for 

Attorneys’ Fees and Incentive Award 

9

811 S.W. Naito Parkway, Suite 420 

Portland, Oregon 97204 

Tel: 503.445.2120 

Fax: 503.445.2120 

Attorneys for Plaintiff and the Class