51 F.4th 1109
9th Cir.2022Background
- Plaintiff Lori Wakefield (later class representative) received prerecorded robocalls from ViSalus after enrolling and later terminating her relationship with the company.
- ViSalus’s enrollment forms collected phone numbers but did not include the written disclosure required by the FCC’s October 2013 TCPA rule defining “prior express consent.”
- Wakefield sued under the TCPA; the district court certified a class of persons who received ViSalus prerecorded telemarketing calls for which ViSalus had no record of prior express written consent.
- ViSalus did not plead consent as an affirmative defense, sought an FCC retroactive waiver of the 2012 rule during litigation, and withdrew a motion to amend its answer to assert consent.
- At trial the jury found ViSalus made 1,850,440 violating calls; the court awarded statutory damages totaling about $925.2 million. Two months later the FCC granted ViSalus a retroactive waiver.
- The district court denied ViSalus’s post-trial motions (decertify class, JMOL/new trial, reduce damages); the Ninth Circuit affirmed the procedural rulings but vacated and remanded the damages issue for constitutional review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | Receipt of unsolicited prerecorded telemarketing calls is a concrete injury under TCPA (standing exists) | No concrete injury established; lack of standing | Held for Plaintiffs: Van Patten controls; unsolicited calls are a concrete injury; standing exists. |
| Failure to plead consent / class decertification | ViSalus waived any consent defense by not pleading it and by disclaiming it; permitting belated consent would prejudice class | FCC’s post-trial retroactive waiver is an intervening change in law excusing any waiver and entitling ViSalus to relief | Held for Plaintiffs: ViSalus waived the defense; FCC waiver was foreseeable and did not excuse the waiver; district court properly refused to consider the waiver. |
| Whether FCC retroactive waiver should have been considered before/at trial | N/A (same as above) | ViSalus: FCC grant retroactively validates consent for calls and requires decertification/JMOL or new trial | Held for Plaintiffs: Court may not retroactively undo ViSalus’s strategic choice to proceed to trial without asserting consent; failure to develop record and seek a stay precludes relief. |
| Aggregate statutory damages as a due process violation | $925.2M is grossly disproportionate in aggregate and punitive beyond TCPA’s goals | Per-violation $500 statutory floor is constitutional; Congress set no aggregate ceiling; aggregation permissible absent extreme disproportionality | Held partially for Defendant: Ninth Circuit remanded—aggregated statutory awards can, in extreme cases, violate due process under Williams; district court must reassess applying Williams and Six Mexican Workers factors. |
Key Cases Cited
- Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017) (unsolicited telemarketing calls constitute concrete Article III injury)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (requirements for showing a concrete injury in fact)
- TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) (clarifies test for intangible injuries and relation to historical harms)
- St. Louis, I. M. & S. Ry. Co. v. Williams, 251 U.S. 63 (1919) (statutory damages violate due process only if "so severe and oppressive" and wholly disproportionate)
- Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301 (9th Cir. 1990) (factors for assessing disproportionate aggregated statutory awards)
- United States v. Olano, 507 U.S. 725 (1993) (standard for waiver: intentional relinquishment of a known right)
- Bateman v. American Multi-Cinema, Inc., 623 F.3d 708 (9th Cir. 2010) (recognized but left open whether aggregated statutory damages may raise due process concerns)