ViSalus Seeks New Trial After $925M Judgment for TCPA Violations

To subvert a $925 million judgment in a class action lawsuit over unwanted text messages, plaintiffs in a class action lawsuit argue that a multi-level marketing and nutritional supplement company shouldn’t be allowed to repackage the same arguments in a new motion already rejected by the court.

Los Angeles-based ViSalus filed a renewed motion for judgment in the U.S. District of Oregon, where plaintiffs filed a class action lawsuit in October 2015. In April 2019, a jury ruled in favor of the class, finding a total of 1,850,436 violations of the federal Telephone Consumer Protection Act (TCPA), which governs prerecorded voice messages, automatic telephone dialing systems and unwanted text messages. Each robocall in the ViSalus judgment amounted to a $500 penalty, totaling $925 million in damages — an award that U.S. District Judge Michael H. Simon upheld in August.

ViSalus has filed a motion claiming that the award should be tossed due to various issues concerning the uniformity of class members. The company asserts that the class was improperly certified, warranting either a judgment as a matter of law or a new trial. ViSalus claims that in order to ascertain whether TCPA violations occurred, individual inquiries are needed to determine whether the calls were made to cell phones or landlines used for business.

In her opposition, class representative Lori W. maintains that ViSalus did not offer new evidence in support of its motion, but instead relied on the same arguments made in its motion to decertify the class, which the court previously denied.

Class Representative Says ViSalus’ Arguments Are Flawed

Wakefield contends that ViSalus failed to show that the court made any errors in rendering its previous decision, slamming the arguments the company makes in its motion for a new trial or judgment.

Wakefield says that ViSalus’s argument that she doesn’t meet the requirement for class certification should be rejected again because the nature of the claim has nothing to do with whether the calls were made to cell phones or landlines. Lori also contends that despite ViSalus’s argument, individual inquiries into each class member’s phone use were not required.

Wakefield contends that under the TCPA, liability attaches for both types of calls.

In her opposition to ViSalus’s motion, Lori points to the court’s previous decision which stated that Lori’s claims are “typical of the class because she received an automated or prerecorded telemarketing message from ViSalus without giving prior express written consent. The injury she suffered, the invasion of privacy caused by a telemarketing robocall, is co-extensive with the injuries that absent class members suffered and is not different in kind than the injury suffered by other class members.”

The court also previously rejected ViSalus’s argument that Wakefield shouldn’t be permitted to represent the class because t she was a “‘disgruntled’ former promoter.” Lori notes that ViSalus raised the same argument “nearly verbatim” in its new motion and that it still fails.

Additionally, Lori states that ViSalus waived its consent defense surrounding the issue of a limited waiver which the company said it obtained from the Federal Communications Commission. ViSalus attempted to make the waiver argument repeatedly since the trial to decertify the class — the argument was rejected by Judge Simon because it wasn’t raised sooner in the lawsuit.

Are Robocalls Made to Businesses TCPA Violations?

Robocalls are a huge problem for many people. According to Business Insider, spam calls comprised 29.2% of all calls in 2018. Congress created the TCPA in an effort to protect consumers from the distraction and annoyance caused by these types of calls.

Per the TCPA, telemarketing and unsolicited sales calls to cell phones and landlines are prohibited, unless the caller had prior express consent or there was an established business relationship. Businesses are also not permitted to make calls to consumers who are on the National Do Not Call Registry.

However, calls made to businesses generally do not violate the TCPA unless the call falls into one of two exceptions — the TCPA specifies that telemarketers are not permitted to make calls to businesses soliciting sales from employees that are unrelated to work or those that concern the sale of “nondurable office or cleaning supplies.”

Although businesses generally do not have the same recourse as consumers who receive calls to residential landlines or cellphones, a business can still file a complaint about calls that don’t fall within the above exceptions. Businesses may also be able to take advantage of third-party blocking services to help reduce the number of calls and prevent distractions in the workplace.

If you’ve received robocalls or unwanted text messages in violation of the TCPA, you may be able to join a class action lawsuit. A class action attorney can best advise you of your legal rights and remedies.

The TCPA Violations Lawsuit is Wakefield v. ViSalus Inc., Case No. 3:15-cv-01857, in the United States District Court for the District of Oregon.

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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.