Judge Uphholds $925M Award in ViSalus Robocall Lawsuit

Sometimes juries hit defendants with a high amount in damages to send a message. But a judge asked to reconsider a $925 million jury award against ViSalus Inc. says the jury determined this award just by doing the math.

U.S. District Judge Michael H. Simon has refused to reduce the jury award in a class action lawsuit against ViSalus, a multi-level marketing and nutritional supplement company, last year, the Associated Press reported. The company was sued for making unsolicited robocalls – nearly two million of them – to advertise its weight-loss and dietary products.

The robocalls constituted unlawful telemarketing practices, an Oregon jury decided in April 2019, and violated the federal Telephone Consumer Protection Act. The jury calculated the amount of the damages based on the number of violations.

ViSalus Robocall Lawsuit History

A former ViSalus associate, Lori Wakefield of Oregon, initiated the class action ViSalus robocall lawsuit after she left the enterprise and then received some of the automated robocalls herself, according to the civil complaint. Wakefield signed up to sell ViSalus products in 2012, but said she never followed through and cancelled shortly after.

At trial in April 2019 in federal court in Oregon, Wakefield testified that she received four unsolicited automated calls from ViSalus on her home telephone line, Reuters reported.

ViSalus admitted to using an autodialing system to make automated phone calls, but denied using it for marketing or sales purposes. The system was only used to contact customers who had placed orders using a credit card if their credit card was declined, the company’s lawyers argued.

Wakefield and the rest of the class of plaintiffs said ViSalus used the automated system to make unwanted robocalls to sales associates, or promoters as they are called, who stopped selling the products.

Marketing Robocalls May Violate Law

The Telephone Consumer Protection Act, or TCPA, was passed by Congress in 1991 to restrict the use of automatic telephone dialing systems, artificial or prerecorded voice messages and text messages and require entities making telephone solicitations to maintain do-not-call lists.

Officials at the Federal Communications Commission are in charge of regulating and enforcing the law.

In 2012, new technology and marketing trends prompted the FCC to update the TCPA guidelines to “require telemarketers to obtain prior express written consent from consumers before robocalling or texting them … and to require telemarketers to provide an automated, interactive ‘opt-out’ mechanism … so consumers can immediately tell the telemarketer to stop calling.”

At trial, the plaintiffs played recordings of ViSalus’ automated marketing calls to demonstrate how they violated the TCPA. The company said the recordings played were only training tools. ViSalus did not play any of the automated credit card declination calls it said the automated system was used for, Reuters reported.

Verdict and Award

The civil trial in the ViSalus robocall lawsuit lasted three days and when it was over the jury found the Michigan-based company had violated the TCPA a total of 1,850,436 times, one for each unsolicited robocall the plaintiffs put forward. Each of those violations earned ViSalus a $500 penalty – an amount prescribed by the law – bringing the total damages to more than $925 million.

ViSalus appealed the award, arguing the individual penalty amount should be lowered to less than a dollar per violation because of the high number of violations in question. The amount the jury decided on would prove to be a “death sentence” for the company, its lawyers said, according to The Oregonian.

Judge Simon said a defendant could not expect to benefit from a reduced penalty rate because it committed an excessive number of violations.

“The jury found that ViSalus committed a stratospheric number of TCPA (Telephone Consumer Protection Act) violations,” Simon’s ruling in the ViSalus robocall lawsuit case says. “It is no surprise that the TCPA’s constitutionally valid minimum penalty of $500 for each violation has catapulted ViSalus’s penalty into the mesosphere.”

Join a Free TCPA Class Action Lawsuit Investigation

If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.

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This article is not legal advice. It is presented
for informational purposes only.