Defendant’s Motions in Limine

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

josh.sasaki@millernash.com

Nicholas H. Pyle, OSB No. 165175

Nicholas.pyle@millernash.com

MILLER NASH GRAHAM & DUNN LLP

3400 U.S. Bancorp Tower

111 S.W. Fifth Avenue

Portland, Oregon 97204

Telephone: 503.224.5858

Facsimile: 503.224.0155

John M. O’Neal (admitted pro hac vice)

john.oneal@quarles.com

Zachary S. Foster (admitted pro hac vice)

zachary.foster@quarles.com

QUARLES & BRADY LLP

2 N. Central Ave.

One Renaissance Square

Phoenix, AZ 85004

Telephone: 602.229.5200

Facsimile: 602.229.5690

Attorneys for Defendant ViSalus, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

LORI WAKEFIELD, individually and on 

behalf of all others similarly situated, 

Plaintiff,

vs.

VISALUS, INC., a Nevada corporation,

Defendant.

CV No. 3:15-cv-01857-BR

DEFENDANT'S MOTIONS IN LIMINE 1–5

Defendant, ViSalus, Inc., pursuant to this Court’s Civil Trial Management Order (Dkt. 

152), brings the following motions in limine:

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I. Legal Standard

District courts have broad discretion in ruling on motions in limine. City of Pomona v. SQM 

N. Am. Corp., 866 F.3d 1060, 1070 (9th Cir. 2017). Motions in limine allow courts to resolve 

extraneous issues that would otherwise “clutter up” the trial. Palmerin v. City of Riverside, 794 

F.2d 1409, 1413 (9th Cir. 1986). “[T]he purpose of a motion in limine is to allow the court to rule 

on issues pertaining to evidence in advance of trial in order to avoid delay and ensure an evenhanded and expeditious trial.” Madrigal v. Allstate Indem. Co., No. CV 14-4242 SS, 2015 WL 

12746232, at *1 (C.D. Cal. Oct. 29, 2015) (quoting Lee v. City of Columbus, OH, No. 2:07-CV1230, 2010 WL 333665, at *1 (S.D. Ohio Jan. 21, 2010), clarified on denial of 

reconsideration, No. CV 14-4242 SS, 2015 WL 12748277 (C.D. Cal. Nov. 5, 2015).

II. Motions in Limine. 

A. Motion in limine No. 1: Testimony or argument claiming that ViSalus is a 

pyramid scheme or regarding its compensation structure should be excluded. 

ViSalus is in the business of selling health, energy, and lifestyle products to consumers. 

ViSalus sells its products using a multi-level marketing (“MLM”) platform, which allows 

individuals or entities to enroll as independent promoters of ViSalus products. The MLM model 

is a legal and well-established sales structure that involves millions of Americans. It is used by 

companies like Amway, Mary Kay Cosmetics, Pampered Chef, and Avon. 

Pyramid schemes, by contrast, are “inherently fraudulent” organizations that “must 

eventually collapse.” Webster v. Omnitrition Int'l, Inc., 79 F.3d 776, 781 (9th Cir. 1996). A

pyramid scheme is “characterized by the payment by participants of money to the company in 

return for which they receive (1) the right to sell a product and (2) the right to receive in return for 

recruiting other participants into the program rewards which are unrelated to sale of the product to 

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ultimate users.” Id. Although frequently mislabeled, “[n]ot all MLM businesses are illegal pyramid 

schemes” F.T.C. v. BurnLounge, Inc., 753 F.3d 878, 883 (9th Cir. 2014). Distinguishing a legal 

MLM from an illicit pyramid requires an in-depth look into “how the MLM business operates in 

practice.” Id.

Evidence is relevant if it has “any tendency to make the existence of a fact that is of 

consequence to the determination of the action more or less probable than it would be without the 

evidence.” Fed. R. Evid. 401. A court can nevertheless exclude otherwise relevant evidence if its 

probative value is substantially outweighed by the danger of unfair prejudice. Fed. R. Evid. 403. 

“‘Unfair prejudice,’ in turn, means ‘an undue tendency to suggest decision on an improper basis, 

commonly, though not necessarily, an emotional one.’” United States v. Allen, 341 F.3d 870, 886 

(9th Cir. 2003) (quoting Fed. R. Evid. 403). Further, a trial court does not abuse its discretion when 

it excludes evidence that may confuse or mislead the jury. Nationwide Transp. Fin. v. Cass Info. 

Sys., Inc., 523 F.3d 1051, 1060 (9th Cir. 2008).

Whether ViSalus is or is not a pyramid scheme1 is not relevant to this case and any such 

suggestion has no probative value. Whether ViSalus operated a legal MLM company or an illegal 

pyramid scheme has no bearing on Plaintiff or the class’s TCPA claims because the TCPA 

regulates how companies place telemarketing calls, regardless of whether they are legally or 

illegally structured. Indeed, Plaintiff has previously conceded that “[t]he focus of this lawsuit . . . 

is not the alleged pyramid scheme described above.” (Dkt. 69, p. 1.) Thus, arguments that ViSalus 

is a pyramid scheme or references or evidence relating to how ViSalus compensates its promoters 

(including to rewards like the “Bimmer Club”) will confuse the jury and will have no “tendency 

 1 ViSalus unequivocally and categorically denies that it is a pyramid scheme.

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to make the existence of a fact that is of consequence to the determination of the action more or 

less probable than it would be without the evidence.” Fed. R. Evid. 401. Allowing Plaintiff to inject 

these issues into an otherwise simple case will waste the little time set aside for this trial.

More importantly, accusations that ViSalus operates an illegal pyramid scheme is 

inflammatory and are highly prejudicial to ViSalus. It would signal to the jury that ViSalus is an 

inherently bad actor and suggest that it acted illegally in every aspect of its business. This has a 

very real danger of inducing the jury to decide the case on an improper basis. 

Therefore, the Court should exclude any testimony or argument that ViSalus was a pyramid 

scheme. 

B. Motion in limine No. 2: Testimony regarding Plaintiff or her husband’s 

dissatisfaction with ViSalus’s products, services, or business opportunity is not 

relevant and is prejudicial to ViSalus.

In her Amended Complaint, Plaintiff alleges that she enrolled as a ViSalus promoter but 

cancelled her account because she “was not happy with the company or the products.” (Dkt. 36, ¶ 

20.) Further, Plaintiff intends to testify that her and her husband “never earned any money was 

ViSalus promoters” and that ViSalus’s calls reminded “her of her poor experience and negative 

interactions she had with ViSalus.” (Dkt. 174, pp. 4–5.) The Court should exclude this information

because it is not relevant to Plaintiff or the class’s claims.

The TCPA’s purpose is to prohibit invasions of a consumer’s privacy. Los Angeles Lakers, 

Inc. v. Fed. Ins. Co., 869 F.3d 795, 804 (9th Cir. 2017). In the context of Plaintiff’s claims, that 

supposed invasion of privacy arose from ViSalus telemarketing to Plaintiff without her prior 

express written consent and after Plaintiff registered her number on the Do-Not-Call registry. Any 

damages she suffered from this invasion stem from the lack of consent and failure to mind her DoNot-Call registration and not from any previous animus towards ViSalus’s products or services.

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The jury must assess ViSalus based on relevant telemarketing conduct, if any, and not on Plaintiff’s 

brief experiences as a promoter two years before the calls at issue. 

Further, Plaintiff is seeking only statutory, and not actual, damages under the TCPA. (See 

Dkt. 176, p. 7 (“Because the amount of damages is set by statute, the jury need only determine the 

number of calls and need not determine the actual amount of the judgment.”).) Under Count II, if 

Plaintiff establishes her claim, the TCPA automatically sets her statutory damages at $500, making 

any negative emotions she experienced all the less relevant. Likewise, any treble damages depend 

exclusively on whether ViSalus willfully or knowingly violated the statute and not on any actual 

damages. 

Thus, Plaintiff’s “poor experience and negative interactions” with ViSalus have no bearing 

on ViSalus’s liability. Allowing Plaintiff to introduce testimony and argument on these issues will 

only serve to confuse the jury and will unnecessarily prejudice ViSalus. 

C. Motion in limine No. 3: Testimony and argument regarding other consumer 

complaints is not admissible.

The Amended Complaint claims that “consumers have repeatedly spoken out against 

Defendant’s pervasive and widespread telemarketing practices” and then quotes numerous 

supposed consumer complaints posted on various internet sites that claim ViSalus called the 

consumers without their consent and despite the consumers listing their numbers on the Do-NotCall registry. (Dkt. 36, ¶ 17.) These complaints are inadmissible for several reasons.

First, the statements are hearsay to the extent that Plaintiff offers them as proof that ViSalus 

regularly called consumers without their consent. Rule 803, Federal Rules of Evidence, defines 

hearsay as a statement “that the declarant does not make while testifying at the current trial or 

hearing; and a party offers in evidence to prove the truth of the matter asserted in the statement.” 

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“[S]tatements taken from the internet are hearsay when offered to prove the truth of the matter 

asserted.” Asetek Danmark A/S v. CMI USA, Inc., No. 13-CV-00457-JST, 2014 WL 12644295, at 

*2 (N.D. Cal. Nov. 19, 2014); see also Brown v. Collections Bureau of Am., Ltd, 183 F. Supp. 3d 

1004, 1006 (N.D. Cal. 2016) (“Internet complaints by anonymous third parties likely will not be 

admissible evidence, of course.”).

Second, the information is not relevant. Whether ViSalus called other consumers who had 

listed their numbers on the Do-Not-Call registry does not make it any more or less likely that 

ViSalus violated the TCPA with respect to Plaintiff individually. The complaints also have no 

bearing on the class claims. Plaintiff has no way to identify the anonymous internet posters so 

there is no way to tell if they are class members or subject to the conduct at issue in this case. 

Third, given their lack of relevance, introducing un-rebuttable complaints serves only to 

unfairly cast ViSalus in a negative light. Consequently, the Court should exclude the complaints 

because their probative value is greatly outweighed by the risk of prejudice to ViSalus. 

D. Motion in limine No. 4: Testimony regarding “GroupCast” has no bearing on 

individual or class liability. 

Plaintiff has designated extensive testimony from John Laun, ViSalus’s former Vice 

President of Marketing, regarding ViSalus’s marketing department use of an outreach platform 

called “GroupCast” to place calls to its promoters. (Dkt. 175-4, pp. 12–19.) According to Mr. 

Laun’s testimony, GroupCast was a “third-party tool where you can send a prerecorded audio 

message to a phone number.” (Laun Depo., 55:11–17). Presumably, Plaintiff intends to present 

this testimony to the jury to show that ViSalus used GroupCast to call Plaintiff and the class 

members.

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But testimony not designated by Plaintiff demonstrates that this is not true because 

ViSalus’s use of GroupCast does not overlap with the alleged calls to Plaintiff or the class 

members. Plaintiff claims that ViSalus called her several times in April 2015. (Dkt. 36, ¶¶ 21–23.) 

Likewise, with respect to the certified class, Plaintiff intends to prove that ViSalus placed violative 

calls to class members “between 2014 and 2016.” (Dkt. 176, p. 3.) 

However, Mr. Laun stated that ViSalus’s marketing department was the only department 

to use GroupCast and that they stopped using the system in 2012. (Laun Depo., 56:14–17, 59:17–

20). Further, no other deposition testimony in this case -- designated or otherwise -- suggests that 

ViSalus used GroupCast to place any calls after 2012. When questioned by Plaintiff, Scott Gidley, 

ViSalus’s Compliance Analyst, stated that he had “no idea” what GroupCast was. (Gidley Depo., 

215:25–216:1.) Likewise, Justin Call, ViSalus’s former Vice President of Sales and Global 

Support and who oversaw ViSalus’s outbound call center beginning in 2012, was not aware of 

ViSalus using any system other than its Avaya Proactive Outreach Manager -- a complete different 

system than GroupCast -- to send prerecorded voice messages. (Call Depo., 70:25–73:8). Last, 

among the thousands of spreadsheets listed in Exhibits 38 and 41 that Plaintiff will purportedly

use to show that ViSalus placed marketing calls to the class,2 not one mentions “GroupCast,” 

“Cast,” or “Group” in its title.

Consequently, there is no overlap between ViSalus’s use of GroupCast and the calls to 

Plaintiff and the class. The equipment that ViSalus stopped using several years before allegedly 

placing any of the alleged calls at issue is wholly irrelevant. 

 2 ViSalus does not concede that the spreadsheets are admissible or are what Plaintiff claims them 

to be.

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Further, there is a strong likelihood that the jury will confuse the GroupCast’s use and 

functionalities with the use and functionalities of the system(s) that Plaintiff will claim that ViSalus 

actually used to call the class members. 

Therefore, the Court should exclude all testimony regarding ViSalus’s use of the 

GroupCast system. 

E. Motion in limine No. 5: Plaintiff should be precluded from referring to 

ViSalus’s telephone system as a “robodialer” or “autodialer,” referring to the 

calls placed as “robocalls” or “automated calls,” and arguing or inferring that 

ViSalus violated the autodialing portion of the TCPA.

The class claims at issue deal with the narrow TCPA provision prohibiting delivery of

prerecorded telemarketing messages to consumers’ residential landline or cell phone without prior 

express written consent. Although different portions of the TCPA prohibit calls using automatic 

telephone dialing systems (“ATDS”),

3 Plaintiff has not claimed, individually or on a class basis, 

that ViSalus’s use of its Progressive Outreach Manager (“POM”) to call its customers violated 

these provision.

Whether ViSalus’s POM system constitutes an ATDS is inconsequential in this case. 

Instead, ViSalus’s liability turns on whether it delivered telemarketing recordings to the class 

members and not whether it used an ATDS to deliver those recordings. Therefore, to prevent jury 

confusion, the Court should preclude any argument, reference, or inference that ViSalus violated 

the TCPA’s autodialer provisions4 or that ViSalus is liable for calls it placed using its POM system

where there is no evidence that ViSalus delivered an artificial or prerecorded message. 

 3 Prohibitions that, because of its lucrative statutory damage awards, are the subject of frequent 

and pervasive legal advertising.

4 47 U.S.C. § 227(b)(1).

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Similarly, under FRE 402 and 403, the Court should not permit Plaintiff to describe 

ViSalus’s calls as “robocalls” or “automated calls” or to label ViSalus’s POM system as a 

“robodialer” or “autodialer.” “Autodialer” and “robocalls” are charged terms that lack a precise 

definition but nevertheless evoke strong negative reactions from the public at large. Because 

whether ViSalus used a “robodialer” or “autodialer” is not an element of Plaintiff or the class’s 

claims, the risk of prejudice to ViSalus greatly outweighs any probative value gained by using the 

terms to describe the POM system. To the extent that the parties wish to distinguish between calls 

made using the POM system and otherwise manually dialed calls, the Court should order the 

parties to describe the calls as “manual calls” and “system or POM generated calls.” This will 

allow the parties to describe the POM system’s functionalities with sufficient detail without any 

prejudicial risk to ViSalus. 

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RESPECTFULLY SUBMITTED this 23rd day of January, 2019.

QUARLES & BRADY LLP

By /s/ John Maston O'Neal

John M. O’Neal (pro hac vice)

john.oneal@quarles.com

Zachary S. Foster (pro hac vice)

zachary.foster@quarles.com

For Mr. Foster:

Telephone: 813.387.0300

Facsimile: 813.387.1800

For Mr. O’Neal:

Telephone: 602.229.5200

Facsimile: 602.229.5690

MILLER NASH GRAHAM & DUNN LLP

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

josh.sasaki@millernash.com

Nicholas H. Pyle, OSB No. 165175

nicholas.pyle@millernash.com

Telephone: 503.224.5858

Facsimile: 503.224.0155

Attorneys for Defendant ViSalus, Inc.

Case 3:15-cv-01857-SI Document 187 Filed 01/23/19 Page 10 of 12
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I hereby certify that I served the foregoing on Plaintiff the foregoing document:

Scott F. Kocher

Stephen J. Voorhees

FORUM LAW GROUP LLC

811 S.W. Naito Parkway, Suite 420

Portland, Oregon 97204

Telephone: 503.445.2102

Fax: 503.445.2120

E-mail: scott@forumlawgroup.com

stephen@forumlawgroup.com

Attorneys for Plaintiff

Simon Franzini (pro hac vice)

Gregory S. Dovel (pro hac vice)

Jonas Jacobson (pro hac vice)

Dovel & Luner LLP

201 Santa Monica Blvd., Ste. 600

Santa Monica, CA 90401

Telephone: 310 656-7066

Fax: 310.656.7069

E-mail: simon@dovel.com

 greg@dovel.com

 jonas@dovel.com

Attorneys for Plaintiff

Stefan Coleman

Law Offices of Stefan Coleman, LLC

1309 Jericho Tpke, 2nd Floor

New Hyde Park, NY 11040

Tel: 877.333.9427

Fax: 888.498.8946

E-mail: law@stefancoleman.com

Attorneys for Plaintiff

Rafey S. Balabanian (pro hac vice)

Eve-Lynn Rapp (pro hac vice)

EDELSON PC

123 Townsend Street, Suite 100

San Francisco, CA 94107

Telephone: 415.212.9300

Fax: 415.373.9435

E-mail: rbalabanian@edelson.com

erapp@edelson.com

Attorneys for Plaintiff

Benjamin H. Richman (pro hax vice)

EDELSON PC

350 N. LaSalle Street, 14th Floor

Chicago, IL 60654

Telephone: 312.589.6370

Fax: 21.589.6378

E-mail: brichman@edelson.com

Attorneys for Plaintiff

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

 CM/ECF system transmission.

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

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

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

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 Facsimile communication device.

 First-class mail, postage prepaid.

 Hand-delivery.

 Overnight courier, delivery prepaid.

DATED this 23rd day of January, 2019.

/s/John Maston O'Neal

Attorneys for Defendant ViSalus, Inc.

Case 3:15-cv-01857-SI Document 187 Filed 01/23/19 Page 12 of 12