ViSalus Asks Court to Reconsider $925M Statutory Damages in TCPA Suit

Multi-level marketing and nutritional supplement company, ViSalus has made another bid to an Oregon federal court to reconsider a $925 million statutory damages award for the nearly two million robocalls it made in violation of the Telephone Consumer Protection Act.

ViSalus filed reply papers in support of its motion for a renewed motion for judgment as a matter of law or a new trial on Nov. 12, 2020, in the U.S. District of Oregon, requesting an oral argument.

The motion comes as part of a long history of litigation in this TCPA class action lawsuit which was commenced by lead plaintiff and former ViSalus employee, Lori W., in 2015 over allegations surrounding the company’s purported robocall practices.

In April 2019, a jury found in favor of the Class, determining that the company had engaged in 1,850,436 TCPA violations and awarded statutory damages totaling $925 million — $500 per each call, in accordance with the TCPA’s permissible recovery. U.S. District Judge Michael H. Simon upheld the jury’s award in a ruling in August 2019.

ViSalus Argues Statutory Damages Awarded Only “Compensate for Annoyance”

ViSalus asserted that its motion presented the court with a last chance to reconsider the $925 million judgment in what the company called a “flawed case that resulted in the largest TCPA judgment in history,” arguing that the compensation only represented statutory damages.

“Such a judgment would be devastating for just about any company, let alone a small health company. And for what? No one has suffered any true harm or injury; the damages are statutory only, to compensate for annoyance,” the supplement company contended.

Although ViSalus asserts many of the same arguments it previously relied upon — including one concerning a limited waiver the company obtained from the FCC, claiming it had received written consent for making the calls — the company argues that is the point of a JMOL motion, referring to Lori’s points addressing the repeatedly raised issues as “throw-away arguments.”

In August 2019, Judge Simon rejected the waiver argument since ViSalus didn’t raise it sooner in the case.

In its motion, ViSalus again raised its argument that there was no uniformity among the Class Members, claiming that the jury couldn’t tell how many calls were made to landlines or cellphones and that Lori’s argument relied only on “how her own phone line was not used primarily for business.”

ViSalus also contends in its motion that it had established business relationships with customers and promoters that precipitated many of the calls.

The company further claimed that because the promoters voluntarily provided their phone numbers during enrollment, they gave their consent to be called and it was irrelevant whether the “phone box” was checked. ViSalus said the proof Lori raised concerning that she hadn’t checked the phone box on her application was “individualized proof” that had nothing to do with whether the other Class Members had checked it or not. Without “genuine controversy,” ViSalus argued, there could be no recovery under the TCPA.

Plaintiff Contends in Motion that ViSalus “Raises the Same Tired Arguments”

In her papers filed on Nov. 12, 2020, requesting that the court sign off on the post-notice judgment plan and claims procedure, Lori argued that the supplement company was attempting to relitigate the case which had already been settled by the jury last year.

She asserted, “ViSalus attempts to pack the claim forms with questions that have already been answered by the jury, a shameless attempt to suppress injured [C]lass [M]embers from filing valid claims.”

Pointing to the jury’s findings, Lori said all that remained in the case was determining the Class Members who could recover for the almost two million robocalls. As the jury had already resolved the issues of the case, Lori purports that ViSalus’ insistence that the claim form ask Class Members a series of specific questions under penalty of perjury as to robocalls they received five years ago “is ridiculous.” She stresses that the jury already found that the calls constituted illegal telemarketing in accordance with the TCPA.

In her motion, Lori maintains that the requests made by ViSalus for information are “significantly more burdensome than necessary” and serve to discourage Class Members from filing claims while making it more challenging to do so.

“Still refusing to accept its fate as a class action defendant, ViSalus now essentially seeks to convert a straight-forward claims administration plan in a TCPA case into a series of individual summary judgment proceedings,” Lori stated in her motion.

Lori further argued, “But ViSalus cannot try and force into the claims administration process what it failed to do at trial, and its attempts to overcomplicate the process in order to thwart its results are not well taken.”

The ViSalus Statutory Damages Case is Case No. 3:15-cv-01857, in the United States District Court for the District of Oregon.

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