JOINT PROPOSED PRETRIAL ORDER

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Scott F. Kocher, OSB#015088

Stephen J. Voorhees, OSB#150595

FORUM LAW GROUP

811 S.W. Naito Parkway, Suite 420

Portland, Oregon 97204

Tel: 503.445.2120

Fax: 503.445.2120

Rafey S. Balabanian, ILB #6285687*

rbalabanian@edelson.com

Eve-Lynn J. Rapp, ILB #6300632*

erapp@edelson.com

EDELSON PC

123 Townsend Street, Suite 100

San Francisco, California 94107

Tel: 415.212.9300

Fax: 415.373.9435

* Admitted pro hac vice

(additional counsel listed on signature page)

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON

LORI WAKEFIELD, on behalf of 

themselves and a class of others similarly 

situated,

 Plaintiff,

v.

VISALUS, INC., a Nevada Corporation,

Defendant.

No. 3:15-cv-01857

JOINT PROPOSED PRETRIAL ORDER

Plaintiff Lori Wakefield and Defendant ViSalus Inc. (“Defendant” or “ViSalus,” and 

collectively, the “Parties”), by and through their counsel, respectfully submit this Joint Proposed 

Pretrial Order (the “Order”). The Parties state that each category in Rule 16-5(b) of the Local 

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Rules of Civil Procedure for the District of Oregon and the Court’s Standing Order (Dkt. 87) 

have been considered and included in this proposed Order.

1. Nature of the Action 

This case is a certified class action. It involves two counts

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against ViSalus (one on 

behalf Plaintiff and the certified class and the other on behalf of Plaintiff, individually) for 

violating a federal law that prohibits certain outbound telemarketing calls. Specifically, Plaintiff 

Lori Wakefield, on behalf of herself and other similarly situated individuals, alleges that ViSalus 

violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, by initiating 

telemarketing calls featuring a prerecorded message or artificial voice to individuals’ residential 

landlines or cellular telephone lines without their prior express consent. (See Dkt. 36, FAC, 

Count II.) Plaintiff, individually, also alleges that ViSalus violated the TCPA by initiating, 

without her consent, more than one telemarketing call within a 12-month period to her landline 

telephone number that had been registered with the National Do Not Call Registry (the “DNC 

Registry”) for at least 30 days in violation of 47 C.F.R. § 64.1200(c). (Id., Count I.) The TCPA 

affords statutory damages in the amount of “$500 per call” for initiating telemarketing calls 

using a prerecorded message or artificial voice without prior express written consent from the 

recipient, 47 U.S.C. §§ 227(b)(3)(B)-(C), and “up to $500 per call” for violating the Do Not Call 

regulations, 47 U.S.C. § 227(c)(5), which both may be trebled at the Court’s discretion if the 

Court finds that ViSalus’s conduct was committed willfully or knowingly. See 47 U.S.C. § 

227(b)(3); 47 U.S.C. § 227(c)(5).

 

1 Although the First Amended Complaint (the “FAC”) alleges other claims, at trial, 

Plaintiff only intends to pursue Count I, individually, and Count II on behalf of herself and the 

Certified Class. 

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On June 23, 2017, the Court certified a class comprised of, “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” (the “Certified Class”). (Dkt. 81.)

ViSalus has raised affirmative defenses but no counter claims. (See Dkt. 41, Amended 

Answer to FAC.) Plaintiff has demanded a jury trial. This case has not been assigned to a 

magistrate judge and, therefore, the Parties have neither consented to trial by a magistrate judge 

nor is such consent applicable.

2. Jurisdiction

This Court has federal question jurisdiction to hear Plaintiff and the Certified Class’s 

claims in this case pursuant to 28 U.S.C. § 1331. Jurisdiction in this matter is not disputed.

3. Agreed Facts

The following statement of facts was previously submitted to this Court on April 20, 2018 

in the Parties’ Joint Statement of Undisputed Material Facts (Dkt. 108), but recited here again for 

the Court’s convenience. Additionally, Paragraph 28 represents one additional fact subsequently 

agreed to by the Parties during the course of their recent meet and confers. Pursuant to Local 

Rule 16-5(b)(3), the Parties have indicated with an asterisk (*) those facts where relevance is 

disputed.

I. Parties, Venue, and Jurisdiction

1. Plaintiff Lori Wakefield is a citizen of Oregon and a resident of Clackamas 

County. 

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2. Defendant ViSalus is a Nevada corporation with a principal place of business in 

Michigan. ViSalus conducts business throughout this District and the United States. 

3. The Court has jurisdiction under 28 U.S.C. § 1331, because the case arises under 

the federal Telephone Consumer Protection Act, 47 U.S.C. § 227. 

4. Venue is proper under 28 U.S.C. § 1391(b) because Defendant conducts 

significant amounts* [ViSalus disputes the words "significant amount" are relevant] of business 

transactions within this District and because the wrongful conduct giving rise to this case 

occurred in, was directed to, and/or emanated from this District. 

II. ViSalus’s Business Model

5. ViSalus is a multi-level marketing company, also known as direct selling or 

network marketing, that sells weight-loss products and dietary supplements. Such products have 

included at times a variety of “kits”—such as the “Balance Kit,” “Shape-Kit,” “Core Kit,” 

“Transformation Kit,” and “Challenge Kit,” combining different products depending on 

customer choice—that customers choose based on what kind of result they’re looking for, from 

losing weight to building muscle. 

6. ViSalus makes money primarily through its “promoters,” independent contractors 

who sell ViSalus products through their own business networks.* [As ViSalus does not dispute 

that it directly made the calls at issue, Plaintiff disputes that the agency relationship between 

ViSalus and “promoters” is relevant.]

7. ViSalus supports and incentivizes promoters by building value in its products, 

opportunities and company, providing training and workshops, creating collateral marketing 

materials to help promoters sell the products, and offering enticing rewards for the highestCase 3:15-cv-01857-SI Document 121 Filed 06/20/18 Page 4 of 16
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ranking promoters, such as a $300 additional bonus if the qualifying promoter purchased a 

qualifying BMW.* [ViSalus disputes that this is relevant.]

8. Promoters must enroll with ViSalus, which requires submitting a promoter 

application either online (through ViSalus’s website) or in print (and that information is 

manually entered into ViSalus’s computer system). Consumers may purchase products directly 

from ViSalus by submitting a purchase form either through ViSalus’s website or on a print form. 

9. Whether submitted online or in print, the promoter applications are identical and 

the process for enrollment has been the same since 2011. 

10. All active ViSalus promoters have access to an online “Vi-Net” account (provided 

they pay the fee for a Vi-Net account). 

11. ViSalus also maintains an internal online database—the “Exigo” system—which 

keeps live records of the information on individuals’ Vi-Net accounts. 

III. ViSalus’s Calling Campaigns

12. In June or July 2012, ViSalus created and employed a team of outbound calling 

agents collectively referred to within the company as “Outbound Support.” 

13. Although the original purpose of Outbound Support was to contact people who 

had attempted to purchase products but whose credit cards were declined, the agents eventually 

began to call customers to inform them of various marketing campaigns. 

14. While these campaigns varied in topic, the calls were made for the same general 

purpose: to retain customers and generate revenue for ViSalus. 

15. The Outbound Support team initially dialed telephone numbers manually using an 

Avaya telephone system. However, sometime in or around 2013 or 2014, ViSalus updated its 

Avaya system with a feature called the Proactive Outreach Manager (“POM”), which enabled it 

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to place autodialed and agentless calls. ViSalus stopped conducting manually dialed mass-calling 

marketing campaigns once it had POM.

16. In 2013, ViSalus began downsizing the company, reducing its overall number of 

employees.* [ViSalus disputes that this statement is relevant, and intends to file a motion in 

limine as this is prejudicial.]

17. ViSalus placed calls through POM using a systematic two-step process: first, 

ViSalus created a contact list for the campaign, utilizing information from the Exigo system such 

as whether a customer had become “inactive;” then, an Outbound Support agent uploaded the 

contact list to POM and assigned it to run with the appropriate campaign. 

18. Once the contact list was uploaded to POM, the Outbound Support team could 

begin placing calls with the click of a button. 

19. With POM, ViSalus used two campaign strategies: “Press One” calls (where a 

prerecorded or artificial voice instructed customers to “press [1] to be connected to a live person 

now”), and “voice casting” calls (where an audio clip played a prerecorded callback message). 

20. “Press One” and “voice casting” calls were all placed through POM.

21. ViSalus’s process for placing prerecorded calls remained the same until the 

Outbound Support team was dissolved in January 2016. 

IV. Plaintiff Wakefield

22. Plaintiff Wakefield briefly signed up to be a ViSalus promoter in February 2012. 

23. Plaintiff Wakefield subsequently ended her affiliation with the company. 

24. Wakefield received calls from ViSalus in April 2015, but the exact number of 

calls received is in dispute. 

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25. Each call was directed to the landline telephone that Wakefield registered with the 

National Do Not Call Registry on February 15, 2008. Each call was intended to sell ViSalus’s 

products. 

26. At least two of the telephone calls may have been from a live person.

27. Two of the telephone calls by ViSalus to the landline for the Wakefield residence 

in April 2015 may have used a prerecorded message. 

28. Wakefield received at least five calls from ViSalus between March 1, 2015 and 

May 30, 2015 when her number was on the DNC Registry, but the Parties do not agree on whether 

those calls were from a live person or contained an artificial or prerecorded voice. 

29. Wakefield operated a home daycare for children in April 2015.* [Plaintiff 

disputes that this statement is probative of any claims or defenses.]

30. On April 8, 2015, Wakefield first contacted plaintiff’s counsel Stefan Coleman by 

email through his website.* [Plaintiff disputes that this statement is probative of any claims or 

defenses.]

4. Claims and Defenses

Plaintiff contends that ViSalus willfully violated the TCPA by (i) initiating calls that 

utilized an artificial and/or prerecorded voice to her on her residential telephone number, and to 

members of the Certified Class, on either their cellular telephone and/or their residential 

telephone numbers, without their informed written consent, and (ii) initiating more than one 

unsolicited telemarketing call to her residential telephone that was registered on the DNC 

Registry within a 12-month period. 

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The Parties agree that ViSalus placed the calls at issue, that the calls were placed for 

marketing purposes, and that at the time Plaintiff received the calls, her landline telephone 

number was registered on the DNC Registry. 

Plaintiff’s Further Position on Claims and Defenses2

Plaintiff claims that none of the TCPA’s exceptions or exemptions apply in this case to 

absolve ViSalus of the liability described above. While it remains unclear exactly what specific 

exemptions or defenses ViSalus intends to assert as they continue to change their position up 

until the filing deadline, it appears to Plaintiff that ViSalus will argue that it should not be liable 

for the calls because Plaintiff cannot demonstrate that (i) ViSalus initiated calls to her residential 

landline telephone number because from time to time she also received phone calls regarding her 

home day care business on that telephone number, (ii) Plaintiff cannot proceed with her DNC 

Claim because ViSalus obtained the consent needed under the do-not-call regulations, (iii) 

Defendant did not willfully or knowingly place the calls at issue, and that (iv) as to the Certified 

Class’s claims, there is no evidence that each and every class member (a) actually received a

prerecorded message or artificial voice (b) on his or her residential or cellular telephone numbers 

as opposed to “business lines or residential landlines that were used primarily for business 

purposes.”

3

In regards to ViSalus’s claim that ViSalus’s calls do not violate the TCPA because they 

were made to a business line, Plaintiff disagrees. The subject telephone line is not specifically 

 

2

In setting forth its position, Plaintiff incorporates by reference the legal arguments made in 

the Proposed Verdict Form. 

3 While Defendant removed this quoted language from the Proposed Verdict Form at the 

last minute, it nevertheless maintained this position throughout the meet and confer process, 

including in its nearly final drafts of its position in this Proposed Pretrial Order provided to 

Plaintiff approximately 12 hours before the filing deadline. 

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registered as a business number. Plaintiff operates a daycare business out of her home, but the 

operation is small (three to four children) and informal (neither she nor the daycare are licensed), 

and since 2007 she has provided her number to a total of approximately eleven parents. At times, 

those parents have called her on both her landline and her cellular telephone to check in on their 

children or deal with other daycare-related matters, but those calls make up a small fraction of 

the calls that typically come through her landline, which are almost entirely personal in nature. 

That Ms. Wakefield testified that the calls were an irritation to Ms. Wakefield’s home daycare 

business simply does not make her telephone number a business line. 

Next, Defendant’s claim that it had Plaintiff’s express permission to call her so as to 

avoid liability on her DNC Claim is not appropriate.4 As noted in the Proposed Verdict Form

(which includes the supporting case law), ViSalus has not offered any factual basis to find that 

Ms. Wakefield “gave prior express written permission to ViSalus to call her,” which is ViSalus’s 

burden to prove. More importantly, ViSalus never raised the affirmative defense of consent in 

any of its responsive pleadings in a manner sufficient to give Plaintiff notice of such defense, and 

as a result, it has waived its right to do so now. To be sure, had ViSalus given Plaintiff adequate 

notice that it intended to assert such a defense, Plaintiff may have taken further discovery and 

would have certainly moved for summary judgment on this issue. ViSalus’s failure to do so 

should not prejudice Plaintiff at trial.

Nevertheless, assuming ViSalus is able to assert its newly claimed consent defense (it 

shouldn’t be), it doesn’t have any facts to support it because ViSalus doesn’t have (and has not 

produced) anything in writing, signed by Ms. Wakefield, as is required. Similarly, the idea that 

 

4 To be clear, ViSalus does not contend that it had the consent required to defend against 

Ms. Wakefield’s prerecorded call claim.

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Ms. Wakefield did not revoke her consent, simply is not true. To the contrary, Ms. Wakefield 

specifically testified to instructing ViSalus to stop calling her. That ViSalus does not have 

records of this is not compelling. This is particularly so given that ViSalus itself admits that it did 

not keep consistent records of call dispositions. 

Next, ViSalus willfully and/or knowingly violated the statute because ViSalus was aware 

of its history of placing unwanted calls, it did not maintain reliable policies or practices for 

recording “do not call” requests and “scrubbing” its call lists against “do not call” requests, and it 

continued to place calls to Plaintiff and consumers even after they requested not to be called. 

Finally, in regards to ViSalus’s argument that Plaintiff cannot prove that she and all 

members of the Certified Class received a prerecorded call or artificial voice call, Plaintiff 

disagrees on many fronts. To start, Plaintiff has evidence that ViSalus placed prerecorded calls to 

each individual on the class list. Plaintiff is only required to show that ViSalus initiated a call 

with a prerecorded and/or artificial voicemail system, not that someone answered or received a 

voicemail to demonstrate a TCPA violation. See 47 U.S.C 227(b)(1)(A), (b)(1)(B) (“It shall be 

unlawful...to make any call [to a cellular phone]...[or] to initiate any telephone call to any 

residential telephone line...”) (emphasis added). Nevertheless, and as ViSalus conceded during 

the meet and confer process, the only individuals on the Class List and for which Plaintiff and 

the Certified Class intend to hold ViSalus liable are those individuals “who could possibly have 

received a prerecorded message or artificial voice call because the person answered the call or an 

answering machine answered the call (per the disposition codes in ViSalus’s records).”

5

 

5 This statement was also subsequently removed from Defendant’s position at the last 

minute, but can be provided to the Court should it be necessary.

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In terms of proving Plaintiff and the Class’s claims more generally, Defendant’s position 

is nothing more than a backdoor attempt to relitigate class certification. The class action 

procedure allows one person—the class representative—to file one lawsuit on behalf of a group 

of individuals who are similarly situated with similar claims. If the class is certified, the

“plaintiff[ is] allowed to prove [his or her] claims by evidence which applies to the class as a 

whole, and do[es] not need to prove each class member's claim individually.” 4 Newberg on 

Class Actions § 11:22(5th ed.). Here, Plaintiff has already met her burden of demonstrating that 

all the prerequisites for class designation are satisfied. (Dkt. 81.) It would be inappropriate—and 

contrary to the entire purpose of Rule 23—to require Plaintiff to demonstrate that each and every 

member of Certified Class received a telemarketing call from ViSalus that utilized an artificial or 

prerecorded voice on their residential or cellular telephone number. There are a number of 

management tools available to the Court to address any individual issues that may arise in a class 

action trial. For example (and as further explained in Plaintiff’s position in the Proposed Verdict 

Form), an individual class member may affirm—under penalty of perjury—that he or she 

received the call at issue to his or her residential or cellular telephone number.

Defendant’s Further Position on Claims and Defenses

ViSalus disputes Plaintiff's positions.

6

First, as to Plaintiff's individual Do-Not-Call-Registry claim (Count One), the TCPA only 

applies to residential subscribers and does not preclude calls to businesses. A landline registered 

as a residential landline with the telephone company but used for business -- such as Plaintiff's 

 

6

 In setting forth its position, ViSalus incorporates by reference the legal arguments made in 

the Proposed Verdict Form. ViSalus also recognizes that the Proposed Verdict Form and this 

Proposed Pretrial Order, intended to identify the issues of agreement and issues for trial, and not 

intended to be the complete statement of all evidence issues that ViSalus may present at trial.

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home daycare business -- is not a residential telephone line protected by the TCPA. In testimony, 

Ms. Wakefield stated that the calls were an irritation as she was trying to run her home daycare 

business. The TCPA was not intended to protect business lines, and therefore Ms. Wakefield

cannot prove her DNC claim. 

Additionally, the DNC regulations provide that a business can call a number on the 

National DNC Registry if it has prior express permission, in a signed writing, from the subscriber. 

Ms. Wakefield signed up to be a ViSalus promoter, selling ViSalus products, and in doing so, 

provided the subject telephone number to ViSalus to receive important ViSalus news. She esigned 

that permission by hitting "save." Ms. Wakefield did not remove that telephone number from the 

ViSalus website, nor did she ever revoke consent to ViSalus to call her. Although Ms. Wakefield 

has contended that she told the live person on the telephone call from ViSalus in April 2015, during 

the first and/or second call, to stop calling, ViSalus has no record of any such revocation. ViSalus 

kept records of do-not-call requests and implemented those requests to stop calling those phone 

numbers. Therefore, ViSalus had express permission from Ms. Wakefield to call her, and she 

never revoked that consent. 

Furthermore, even if calls to Ms. Wakefield violated the TCPA, the parties disagree on the 

number of calls. Additionally, ViSalus will present evidence to demonstrate that it did not willfully 

or knowingly violate the law. Such evidence includes its internal do-not-call procedures, its efforts 

after the lawsuit was received to make sure Ms. Wakefield did not receive any further calls, and 

that the same landline phone was provided to ViSalus for Byron Wakefield's account which is the 

reason she may have received multiple calls. 

As to Count Two, ViSalus will present evidence that Plaintiff cannot prove that she and all 

members of the Certified Class received a prerecorded call or artificial voice call. ViSalus's 

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records do not establish whether a prerecorded message or artificial voice was played or that all of 

the calls listed on certain spreadsheets of calls-to-be-made were actually dialed. Some 

spreadsheets have "disposition codes" identifying the result of the call (such as an answering 

machine picked up or the live person did). Others do not. Ms. Wakefield and the Class must prove 

their claims in the aggregate for each of the elements of the TCPA; Ms. Wakefield cannot prove 

the elements of her claim and extrapolate that result to all class members. Also, Ms. Wakefield 

and the Class must prove that the calls employed a prerecorded message or artificial voice. The 

call could not have used either if the call was never answered by a live person or an answering 

machine. 

As to Ms. Wakefield, she has no proof that she received a prerecorded message other than 

her own testimony, and has testified that she deleted the prerecorded message that she did allegedly 

receive. 

ViSalus will also present evidence that its records do not establish whether the telephone 

number called was a cell phone or landline; and if a landline, whether it was a residential telephone 

number (and not actually a home-business telephone line) or a business line. Therefore, Plaintiff 

cannot prove that calls to her and class members were to telephone lines to which the TCPA 

applies. ViSalus also contests that its records enable Plaintiff to prove the total number of calls 

made to telephone lines protected by the TCPA, using a prerecorded message or artificial voice. 

ViSalus will present testimony that some promoters put in fake names and phone numbers or put 

in their own phone number for real customers, such that hundreds of calls may have been placed 

to the single telephone number for a promoter. 

To the extent the Court reaches the willful/knowing question, ViSalus will present evidence 

that it called only its customers and promoters, who signed up to make money for themselves by 

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selling ViSalus products. ViSalus will present evidence regarding promoters and customers 

agreeing to receive telephone calls from ViSalus about company news, and the privacy policy 

making customers and promoters aware that ViSalus may call them with promotional calls. 

ViSalus will also present evidence of how ViSalus promoters and customers could request to not 

be called, or remove their phone number from their Vi-Net account. 

5. Other Legal Issues

The Parties currently dispute the following legal issues: (i) the meaning of “residential 

telephone;” (ii) whether ViSalus is permitted to raise the affirmative defense of consent, and if 

they are, how the jury should be instructed on the issue; (iii) the type of proof Plaintiff must put 

forth at trial to establish the claims of the Certified Class; and (iv) whether Plaintiff and the Class

must establish that a prerecorded message was left when an answering machine responded to the 

call in order to prove their TCPA claim in Count II. As discussed above, these issues are further 

discussed in the Proposed Verdict Form simultaneously submitted herewith. The Parties are 

prepared to provide further briefing on these areas if the Court wishes.

6. Proposed Amendments to the Pleadings

Plaintiff does not propose any amendments to the pleadings, but notes that, at trial, she 

only intends to move forward with Count I on behalf of herself and Count II on behalf of herself 

and the Certified Class. Plaintiff does not intend to proceed with Count III of the First Amended 

Complaint. (Dkt. 36.) 

Respectfully submitted, 

LORI WAKEFIELD, individually and on behalf

of all similarly situated individuals,

Dated: June 20, 2018 /s/ Eve-Lynn J. Rapp

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Rafey S. Balabanian, ILB #6285687*

rbalabanian@edelson.com

Eve-Lynn J. Rapp, ILB #6300632*

erapp@edelson.com

EDELSON PC

123 Townsend Street, Suite 100

San Francisco, California 94107

Tel: 415.212.9300

Fax: 415.373.9435

Attorneys for Plaintiff and the Class

VISALUS, INC.

Dated: June 20, 2018 /s/ Sarah Anchors

Sarah Anchors*

QUARLES & BRADY LLP

Renaissance One, Two North Central Avenue

Phoenix, Arizona 85004-2391

Tel: 602.229.5788

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

josh.sasaki@millernash.com

Nicholas H. Pyle, OSB No. 165175

nicholas.pyle@millernash.com

MILLER NASH GRAHAM & DUNN LLP

3400 U.S. Bancorp Tower

111 S.W. Fifth Avenue

Portland, Oregon 97204

Tel: 503.224.5858

Fax: 503.224.0155

Attorneys for Defendant ViSalus, Inc.

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CERTIFICATE OF SERVICE

I, Eve-Lynn J. Rapp, an attorney, certify that on June 20, 2018, I served the foregoing by 

causing true and accurate copies of such paper to be transmitted to all counsel of record via the 

Court’s CM/ECF electronic filing system. 

/s/ Eve-Lynn J. Rapp

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