Wakefield v. Visalus, Inc.
3:15-cv-01857
D. Or.Jun 24, 2019Background
- Plaintiff Lori Wakefield sued ViSalus, Inc. on behalf of a certified class under the TCPA after receiving automated telemarketing calls; a jury found 4 violative calls to Wakefield and 1,850,436 to class members.
- Statutory minimum damages under the TCPA are $500 per violative call, yielding a minimum award of $925,220,000.
- Plaintiff sought treble damages under 47 U.S.C. § 227(b)(3)(C), arguing Defendant’s violations were willful or knowing.
- ViSalus argued that willfulness should require knowledge that its conduct violated the TCPA and contended consent forms were valid under pre-2013 FCC rules; industry confusion followed later FCC rule changes.
- The Court adopted a volitional-act standard for “willfully or knowingly” but required proof that ViSalus knew it was engaging in the specific conduct giving rise to liability (calls were telemarketing, to mobile/landline, used prerecorded voice, and lacked prior express written consent).
- The Court denied enhanced (treble) damages, citing lack of prior TCPA suits against ViSalus, limited consumer complaints, ViSalus’s cessation of outbound marketing after suit, and the already large statutory award exceeding $925 million.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard for “willfully or knowingly” under TCPA | Willfulness requires only that calls/messages/omissions were intentional, not inadvertent | Treble damages should require proof Def. knew or had reason to know its conduct violated the TCPA | Court: "willfully/knowingly" means volitional/intentional conduct (no need to know law), but Plaintiff must show Def. knew it was engaging in the specific violative conduct (calls, number type, prerecorded voice, no consent) |
| Whether ViSalus acted willfully/knowingly | Wakefield: industry confusion aside, Def. was willfully blind and intentionally sent prerecorded telemarketing without consent | ViSalus: believed pre-2013 consents remained valid; industry confusion about FCC rule changes | Court: disputed knowledge of lack of consent; did not resolve willfulness question on confusion grounds because enhanced damages not warranted |
| Whether enhanced (treble) damages should be awarded | Enhanced damages appropriate due to intentional sending of violative calls and alleged willful blindness | Treble damages unwarranted given good-faith legal uncertainty, lack of prior enforcement, and Defendant’s conduct after suit | Court: Denied treble damages — minimum statutory award already exceeds $925M; Def. stopped calls after suit; limited prior complaints; award sufficient to deter |
| Scope of plaintiff’s required proof to show willfulness | Plaintiff need only show calls were made intentionally and consent omission was deliberate | Def. says plaintiff must show Def. knew calls violated TCPA | Court: Plaintiff must prove Def. knew it was making telemarketing calls to mobile/landline using prerecorded voice without prior express written consent (i.e., knew the specific facts giving rise to liability) |
Key Cases Cited
- Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768 (11th Cir.) (volitional conduct satisfies TCPA "knowing" standard)
- Davis v. Diversified Consultants, Inc., 36 F. Supp. 3d 217 (D. Mass.) (interpreting willful/knowing as volitional, not requiring knowledge of illegality)
- Lary v. Trinity Physician Fin. & Ins. Servs., 780 F.3d 1101 (11th Cir.) (plaintiff must prove defendant knew it was sending unsolicited advertisement to establish willfulness)
- Texas v. American Blastfax, Inc., 164 F. Supp. 2d 892 (W.D. Tex.) (contrasting view that stronger showing of wrongful intent may be required)