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

josh.sasaki@millernash.com

MILLER NASH GRAHAM & DUNN LLP 

3400 U.S. Bancorp Tower, 111 S.W. Fifth Ave 

Portland, OR 97204 

Telephone: 503.224.5858 

Facsimile: 503.224.0155 

Benjamin G. Shatz (pro hac vice) 

bshatz@manatt.com

Christine M. Reilly (pro hac vice) 

creilly@manatt.com

John W. McGuinness (pro hac vice) 

jmcguinness@manatt.com

MANATT, PHELPS & PHILLIPS, LLP 

2049 Century Park East, Suite 1700 

Los Angeles, CA 90067 

Telephone: 310.312.4000 

Facsimile: 310.312.4224 

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. 

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

DEFENDANT’S OPPOSITION TO 

PLAINTIFF’S MOTION FOR APPROVAL 

OF CLASS NOTICE PLAN 

Request for Oral Argument 
1 

Defendant’s Opposition to Plaintiff’s Motion for Approval of Class Notice Plan

OPPOSITION TO PLAINTIFF’S CLASS NOTICE PROPOSAL 

Defendant ViSalus opposes Plaintiff’s motion for approval of post-judgment notice plan 

and claims procedure (Dkt. 396) on several points. 

I. It cannot even be determined who is to receive class notice post-trial. 

Plaintiff states that she provided KCC with a list of all the telephone numbers that were 

part of a summary presented at trial and that the proposed notice list contains only the phone 

numbers that were part of the class-wide proof that the “jury evaluated to reach its verdict.” 

Mot., p. 5. However, this ignores the fact that the jury’s verdict was not consistent with the 

number of violations that were argued at trial. Plaintiff argued at trial that there were at least 

1,927,928 violations, but the jury only returned a verdict for 1,850,436 violations. Apr. 12, 2019 

Trial Transcript, pp. 502, 544-546; Dkt. 282. The discrepancy is unknown and incapable of 

determination. 

Compounding the issue further, when the jury was asked to separate out the number of 

prerecorded message calls made to mobile phones and the number of prerecorded message calls 

made to “residential landlines,” the jury returned a verdict of “We cannot tell” on both 

questions. So the jury arrived at precisely 1,850,436 calls—we do not know how—but it could 

not determine which calls were made to mobile phones and which were made to “residential 

landlines.” If the jury could not determine which phone lines are at issue, then it is clear that we 

cannot determine who to give notice to. In short, notice cannot be provided to those who may be 

entitled to damages based on the jury’s verdict. 

II. The Class Notice documents should be structured in such a manner as to identify 

class members who are actually entitled to relief. 

Plaintiff argues that the claims process will resolve “any individual factual issues [] 

regarding who is entitled to relief.” Mot., p. 5. But Plaintiff’s notice plan is wholly inadequate 

and not designed to identify class members who are entitled to relief. Specifically, (1) Plaintiff’s 

proposed class notice characterizes qualifying landlines as those “used primarily for residential 

purposes” (Dkt. 396-1, Peak Dec., Attachment A (email notice), p. 15); and (2) Plaintiff’s 
2 

Defendant’s Opposition to Plaintiff’s Motion for Approval of Class Notice Plan

proposed long form notice similarly characterizes the applicable inquiry as whether a “landline 

[is] used primarily for residential purposes (based on a box checked on the Claim Form)” and 

noting that “individual claim[s] may be challenged by Defendant (e.g., on grounds that the 

telephone number is not a landline used primarily for residential purposes).” Dkt. 396-1, Peak 

Dec., Attachment C. But this formulation—“used primarily for residential purposes”—does not 

clearly convey that only landlines used primarily for personal, as opposed to business purposes, 

are properly within the class. A class member may think that a landline used primarily for 

business purposes might still qualify as residential because the landline is a phone in the person’s 

home (i.e., residence). 

The confusion is compounded by Plaintiff’s proposed “Claim Form,” which asks a class 

member to “declare under penalty of perjury” and “this number is a landline that is used 

primarily as a residential telephone” by simply checking a single checkbox. Dkt. 396-1, Peak 

Dec., Attachment B, p. 17 (emphasis added). The claim form instructions then revert to the prior 

language when noting that “additional processing will need to be performed to determine 

whether ... that number was a cellular line or landline used primarily for residential 

purposes.” Id. (emphasis added). So, on one hand, class members are being instructed that they 

may have a claim if they primarily used their home phone for “residential purposes” but on the 

other, they are being told that they have a claim if their landline is a “residential telephone.” 

These instructions are facially confusing and seemingly contradictory. Class members 

are not likely to understand to what they are being asked to attest and they are not likely to 

understand what “residential purposes” versus “residential telephone” means in the context of 

this case. This is incredibly significant, as it stands to compromise the integrity of the claims 

process and promote the submission of invalid claims for which ViSalus should not have to pay. 

Plaintiff’s proposed claim form is inadequate in various other ways. The claim form 

should require claimants to declare, under penalty of perjury, that (1) they received and heard a 

prerecorded voice message from ViSalus; (2) the prerecorded voice message was marketing in 
3 

Defendant’s Opposition to Plaintiff’s Motion for Approval of Class Notice Plan

nature; and (3) they did not consent to receive such calls. In addition, the claimant should be 

required to (1) identify the phone number that received a prerecorded marketing message from 

ViSalus; (2) state whether they were the subscriber of the telephone number during the relevant 

time period; (3) identify their telephone provider (e.g., Verizon, AT&T); and (4) provide a 

telephone bill or other documentation showing that the claimant was the subscriber of the phone 

number during the period in question.1

 The claim form should also make clear that by filling 

out, signing, and submitting the form, the claimant affirms under penalty of perjury under the 

laws of the United States that the information is accurate and complete. 

The claim form should also be designed in such a manner so that it asks appropriate 

questions to determine whether a particular class member qualifies for relief, rather than a 

process where class members are left to guesswork and their own factual and legal conclusions. 

This is especially true with respect to the essential element of establishing that any landline at 

issue was used primarily for residential and not business purposes. Plaintiff Wakefield testified 

for several hours on various inquiries relevant to determining whether her phone number was 

primarily used for residential, rather than business, purposes. For example, Wakefield’s 

testimony at trial (April 11, 2019 Trial Transcript at pp. 243–50) included: (1) Plaintiff operated 

a home daycare business for children in April 2015, the month she received calls from ViSalus; 

(2) the landline number at issue was registered to “Lori Wakefield”; (3) the number was 

registered and billed as a residential landline; (4) Plaintiff did not advertise the number as a 

daycare business; (5) Plaintiff did not place the number on flyers for her home daycare business; 

(6) Plaintiff did not place the number on business cards; (7) Plaintiff did not put a sign with her 

number in the front of her house advertising her home daycare business; (8) Plaintiff did not 

announce “Lori’s Day Care” when she picked up the phone; (9) Plaintiff did not advertise the 

number in any way; (10) of the 301 telephone calls made to the number within a three-month 

period (which Plaintiff submitted phone records to prove), only two calls were related to 

 

1

 Class members should fill in the phone number that received prerecorded messages on the 

claim form, rather than the claim form pre-populating telephone information. 
4 

Defendant’s Opposition to Plaintiff’s Motion for Approval of Class Notice Plan

Plaintiff’s daycare business and the remaining 299 calls were “personal”; (11) Plaintiff’s use of 

her line during this three-month period was “typical”; (12) when Plaintiff signed up as a 

promoter with ViSalus, she did not sign up as a company and did not fill out a company 

enrollment form; (13) Plaintiff did not use the line to sell ViSalus products and neither did her 

husband, who also used the line; and (14) after Plaintiff cancelled her business relationship with 

ViSalus, she did not use the line for ViSalus business. See Defendant’s Motion to Decertify the 

Class, Dkt. 306, at 11–12. After weighing the evidence and considering the credibility of trial 

witnesses, including Plaintiff, the jury determined that Plaintiff’s line qualified as “residential” 

under the TCPA. Id. at 12. 

ViSalus recognizes that it will not be able to depose each individual class member for 

hours to determine their eligibility like it did at trial for Ms. Wakefield. But at the very least, the 

claims form and instructions should be designed to ask the relevant questions for the parties, this 

Court, and/or a Special Master to determine if that member qualifies for damages.2

 Class 

members must show that they qualify for damages. Asking a class member to simply check a 

box stating that their landline is primarily a “residential telephone” does not even come close to 

resolving this key issue.3 The Court seemed to recognize as much post-trial.4

 

2 As a result, the proposed postcard notice and claim form are insufficient. 

3

 Should the Court decide not to stay claims administration, the Court should order the parties to 

meet and confer regarding revised class notice forms and if agreement cannot be reached, order 

the submission of revised forms. Alternatively, the Court might consider delegating these issues 

to a Special Master for further discussion and resolution. 

4

 Tr. Oct. 11, 2019 at 12:3–15 (“How do we handle the administration of this? Should I handle it 

before an appeal? Should I handle it only after it comes back from the Ninth Circuit? And one 

of the questions specifically that I’m thinking about is in one of my recent opinions, Docket 344, 

entered on August 21st of this year, I noted on page 13, ‘For class members called on their 

mobile phones, no additional fact finding could possibly affect ViSalus’s liability. For those 

class members called on their home telephones who also ran a business out of their home, some 

additional fact finding may be necessary before a specific class member may recover.’ How do I 

deal with that and when should I deal with that?”); id. at 15:4–14 (“I don’t understand how the 

jury had any evidence at all on which to make a decision or a finding that an absent class 

member who was called on their home telephone did not use that telephone primarily for 

business purposes. I thought we had all discussed the fact that we could handle this post-trial in 
5 

Defendant’s Opposition to Plaintiff’s Motion for Approval of Class Notice Plan

As ViSalus has continuously argued, these issues are more than a mere administrative 

claims-processing concern. It constitutes a failure of proof by Plaintiff at trial. This problem 

also has led to a flawed judgment figure that includes potentially disqualified phone lines in the 

liability calculation.5

 The Court has attempted to address this problem by entering a judgment of 

“up to” a maximum sum, i.e., “an aggregate amount not to exceed $925,218,000.” But this 

uncertain and still-to-be determined final judgment amount only highlights the fundamental and 

threshold problem resulting from Plaintiff’s failure of proof in establishing class liability at trial. 

The claim form is also problematic because it encourages the submission of false or 

inaccurate claims by telling claimants: “YOU MUST CHECK AT LEAST ONE BOX BELOW 

IN ORDER TO RECOVER FROM THIS LAWSUIT.” Dkt 396-1, p. 17 (Peak Decl., 

Attachment B) (emphasis original). The claim form should be designed to solicit relevant 

information from class members and then determine whether the claimant qualifies for damages. 

Instructing class members how to fill out the form in order to ensure the receipt of payment is 

inappropriate. 

Further, the claim form should make clear that the call was initiated with or began with a 

prerecorded voice message. See 47 U.S.C. § 227(b)(1)(A) (it is unlawful “to make any call ... 

using ... an artificial or prerecorded voice”); 47 U.S.C. § 227(b)(1)(B) (it is unlawful “to initiate 

 

the claims administration process, but I don’t see your point. I don’t understand how the jury 

had the evidence before them that the home telephones that were used by any given absent class 

member was not used for primarily business purposes. What was that evidence?”). 

5 See Tr. Apr. 3, 2019 at 16: 16–22 (“If they present 800,000, and the jury finds — let’s just grab 

a number out of thin air — half of that, 400,000. Okay, fine. That’s going to cap the defendant’s 

liability. Now, that doesn’t mean that the defendant has to write a check for $500 times 400,000. 

There still has to be a claims process, and we will take it from there what we do with that.”); 

Tr. Apr. 3, 2019 at 18:12–23 (“So we need to ask the jury, frankly, as plaintiff proposed, as 

defendant proposed, how many people received these types of automated or artificial voice calls 

to either a cellular phone or a residential landline and excluding business lines? The jury will 

have to answer that question. They are going to fill in that number, and that number will then 

cap the amount of liability that defendant may be liable for. And then when we deal with, 

‘Okay, step forward and get your money,’ only those people that actually have received calls to a 

landline residential number, or a cellular telephone, would be eligible.”). 
6 

Defendant’s Opposition to Plaintiff’s Motion for Approval of Class Notice Plan

any residential telephone line using an artificial voice or prerecorded voice”); 47 C.F.R. 

§ 64.1200(a)(2) (no person or entity may “[i]nitiate, or cause to be initiated, any telephone call 

that includes or introduces an advertisement or constitutes telemarketing, using ... an artificial or 

prerecorded voice”); 47 C.F.R. § 64.1200(a)(3) (no person or entity may “[i]nitiate any telephone 

call to any residential line using an artificial or prerecorded voice to deliver a message”). 

Lastly, all references in the claim form and notices representing that the Court entered a 

“total judgment of $925,218,000” are incorrect. The Court entered an aggregate amount “not to 

exceed” this amount. Dkt. 383 (Judgment). 

III. The claim form should require claimants to indicate how many calls they received, 

and whether they heard a prerecorded marketing message on each call. 

In addition to information needed to establish eligibility for a damages award, each 

claimant should also have to state how many qualifying calls they received. This is necessary 

because the $500 statutory damages are premised on a per-call basis. Thus, it is not enough for a 

claimant to simply avow that he or she was called because only the number of calls establishes 

the amount of damages. 

Without a declaration as to the number of calls received, the claims administrator would 

determine this. But the administrator should merely be administrating, not making factual 

determinations about how much money each class member should be paid. ViSalus should have 

the ability to challenge the administrator’s “adjudication” of the number of calls received. 

Moreover, Plaintiffs are in the best position to know whether they received prerecorded voice 

messages from ViSalus and the number of such calls. For example, the mere fact that ViSalus’ 

records may list a telephone call does not mean that such call was successfully completed or that 

the class member actually received and heard the offending prerecorded message. Thus, each 

claimant should have to aver that he or she received one or more calls (and state how many), 

heard a prerecorded message, aver that message was marketing in nature, and that the phone line 

or lines for such calls, if landline, were used primarily for residential, and not business purposes. 
7 

Defendant’s Opposition to Plaintiff’s Motion for Approval of Class Notice Plan

IV. The Claims Process Raises Serious Due Process Concerns 

In addition to the concerns raised above, Plaintiff’s claims process raises serious due 

process concerns. The proposal essentially vests the claims administrator with the power to 

determine if a claimant has established a claim for liability under the TCPA and award damages 

against ViSalus. Mot., p. 7 (claims administrator “would follow a finding of liability to prove up 

claims and damages amounts”; “claims administrator will determine the number of illegal 

robocalls that number received”; and “claims administrator will then award each claimant $500 

per call”). Instead of merely administering claims, as is typically done, the administrator here is 

responsible for making factual determinations regarding whether a violation has occurred, the 

number of violations as to each class member, and the aggregate amount of damages to the class. 

That determination could be several hundred million dollars up to the judgment’s $925 million 

cap. 

Even if ViSalus is given the right to challenge the findings, this improperly shifts the 

burden to ViSalus to disprove damages. That is not ViSalus’ burden. That burden of proof rests 

squarely with the Plaintiff and/or the claimant. There needs to be a process for determining 

whether a class member has established a claim for damages and a process by which challenges 

can be lodged and then a factual determination made on each claim. For example, if a claimant 

purports to have received calls on a “residential” line, there needs to be a process to determine if 

the claimant has met that burden and for ViSalus to challenge that claim. These types of 

determinations are not suitable for a class administrator, especially given the significant monies 

at stake. At a bare minimum, there should be some mechanism to challenge a class member’s 

claims and invalidate them. For example, if a class member stated that they received 50 calls, 

but ViSalus’ records showed they received at most a couple, that claimant’s claims should be 

invalidated or reduced. See Mullins v. Direct Digital, LLC, 795 F.3d 654, 658, 671 (7th Cir. 

2015) (“[T]he defendant’s due process interest is implicated because the calculation of each class 

member’s damages affects the total amount of damages it owes to the class. That’s why the 
8 

Defendant’s Opposition to Plaintiff’s Motion for Approval of Class Notice Plan

method of determining damages must match the plaintiff’s theory of liability and be sufficiently 

reliable.”). 

The process proposed by Plaintiff violates ViSalus’ due process rights. See Mullins, 795 

F.3d at 658, 671 (defendant “must be given the opportunity to raise individual defenses and to 

challenge the calculation of damages awards for particular class members”); Marcus v. BMW of 

N. Am., 687 F.3d 583, 594 (3d Cir. 2012) (“Forcing BMW and Bridgestone to accept as true 

absent persons’ declarations that they are members of the class, without further indicia of 

reliability, would have serious due process implications.”). See also Comcast Corp. v. Behrend,

569 U.S. 27, 34–35 (2013). 

V. The Class notice documents should clarify that Plaintiff’s Counsel is seeking 

hundreds of millions of dollars in fees. 

The proposed Long Form Website Notice (Dkt. 396-1, p. 22) contains a section titled 

“How will the lawyers be paid?” This section asserts that “Class Counsel have requested a fee of 

25% of the judgment,” but fails to forthrightly state that this calculates out to $231,304,500. 

Class members should be informed—indeed they have the right to know—that class counsel is 

seeking over $231 million dollars, because such an astronomical figure may (and will) prompt 

objections. 

VI. The perjury declaration should be amended to include “under the laws of the 

United States.”

ViSalus further objects to Plaintiff’s proposed draft notice on the grounds that the perjury 

declaration omits the language “under the laws of the United States.” See Dkt. 396-1 at p. 17 

(proposed post-card notice). First, including this standard language is commonplace in all 

federal court declarations made under penalty of perjury. Second, because the proposed claim 

form does not require claimants to state their location when signing, the claim form must include 

language that the declaration is made under the laws of the United States to account for the 

possibility that some claimants will sign while abroad. See 28 U.S.C. § 1746(1) (declarations 
9 

Defendant’s Opposition to Plaintiff’s Motion for Approval of Class Notice Plan

executed outside the United States must include the language “under the laws of the United 

States”). 

VII. ViSalus should not, and cannot, bear the costs of the proposed notice and claims 

administration. 

As ViSalus has established through evidence recently submitted to the Court, ViSalus is 

in extreme financial distress. Plaintiff’s extraordinary request that ViSalus pay the costs of class 

notification and claims administration is unduly burdensome and frankly impossible for ViSalus 

to bear. What few assets ViSalus has will be devoted to pursuing an appeal of the judgment. 

Rechanneling those assets for claims administration will interfere with ViSalus’ ability to pursue 

its rights on appeal. 

To be sure, courts have the power to shift the costs of administration even when liability 

is on appeal. Hunt v. Imperial Merch. Servs., Inc., 560 F.3d 1137, 1144 (9th Cir. 2009). But that 

discretion may, by definition, be exercised in either direction. And Hunt makes clear that 

although discretion exists, the more typical position—arising from Supreme Court precedent—is 

that Plaintiff’s counsel bears administrative costs, and recovers them later from the judgment: 

“The usual rule is that a plaintiff must initially bear the cost of 

notice to the class.” Eisen, 417 U.S. at 178. “[C]ourts must not 

stray too far from the principle underlying [Eisen] that the 

representative plaintiff should bear all costs relating to the sending 

of notice because it is he who seeks to maintain the suit as a class 

action.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 359 

(1978). However, occasionally “the district court has some 

discretion” in allocating the cost of complying with an order 

concerning class notification. Id. at 350. (Hunt, 560 F.3d at 1143.) 

Here, it is Plaintiff’s counsel who has chosen to pursue this class action litigation and has 

fronted the administrative costs to date. ViSalus has made clear that it has no money to pay the 
10 

Defendant’s Opposition to Plaintiff’s Motion for Approval of Class Notice Plan

judgment in this case,6

 intends to appeal, and is in no position to afford class notice or 

administration costs. Since it is Plaintiff’s counsel who seek to push this case forward in this 

posture, it is Plaintiff’s counsel who should pay for those expenses. 

VIII. Resolution of class notice and claims administration should be stayed until ViSalus 

has exhausted all post-judgment and appellate avenues of relief. 

Finally, given that ViSalus has a pending motion for a new trial or judgment as a matter 

of law, and given that if ViSalus’ post-judgment motions are unsuccessful, ViSalus intends to 

appeal, this Court should stay considerations of any class notice and class administration issues 

until after appeal. If ViSalus obtains appellate relief, then the costs of notice and administration 

will have been wasted. ViSalus has no money to spare and presumably Plaintiff’s counsel—

should they be charged with the costs—should similarly not wish to waste such funds. 

Moreover, as noted above, the claims process in this case is going to be quite challenging, 

especially in regard to determining whether class members are actually entitled to damages. In 

fact, the Court itself hinted that due to these challenges, a special master might be needed for 

claims administration. See Dkt. 344 at 13 (Court notes that for class members called on their 

home telephones who also conducted business from home, “some additional fact-finding may be 

necessary before a specific potential class member may recover”). The parties should not 

continue to bear this extraordinary expense until such time as it is clear that Plaintiff and the 

class will actually prevail on the legal issues. 

 

6

 Even Plaintiff acknowledges that “it is highly unlikely that ViSalus will ever be able to pay 

anything approaching a $925 million judgment.” (Mot. at 3, n.2).
11 

Defendant’s Opposition to Plaintiff’s Motion for Approval of Class Notice Plan

Respectfully submitted, 

Dated: October 22, 2020 MANATT, PHELPS & PHILLIPS, LLP 

By s/Benjamin G. Shatz 

Christine M. Reilly (pro hac vice) 

creilly@manatt.com

Benjamin G. Shatz (pro hac vice) 

bshatz@manatt.com

John W. McGuinness (pro hac vice) 

jmcguinness@manatt.com

MANATT, PHELPS & PHILLIPS, LLP 

2049 Century Park East, Suite 1700 

Los Angeles, CA 90067 

Tel: 310.312.4000 Fax: 310.312.4224 

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 

Tel: 503.224.5858 Fax: 503.224.0155 

Attorneys for Defendant ViSalus, Inc.