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United States Court of Appeals for the Ninth Circuit
May 11, 2022, Argued and Submitted, Portland, Oregon; October 20, 2022, Filed
[*1112] TALLMAN, Circuit Judge:
Lori Wakefield, seeking to represent herself and a now certified [**5] class of similarly situated individuals, initiated this action against ViSalus, Inc. under the Telephone Consumer Protection Act ("TCPA"), alleging that ViSalus unlawfully sent her and the other class members automated telephone calls featuring an artificial or prerecorded voice message without prior express consent. See 47 U.S.C. § 227(b)(1). During the relevant timeframe, the Federal Communications Commission ("FCC") rules were amended to define "prior express [*1113] consent" to require, among other things, a written disclosure explicitly stating that, by providing a signature and phone number, the recipient consented to receive calls featuring an artificial or prerecorded voice. See 16 C.F.R. § 310.4(b)(1)(v)(A)(i).
Wakefield and other class members ("Plaintiffs") had signed up with ViSalus to purchase or sell purported weight-loss products. When their interest as customers or promoters waned, ViSalus sought to get their continued participation through targeted robocalls. Wakefield then brought federal statutory claims in response to these calls.
Because ViSalus did not provide the required written disclosures to Plaintiffs before making the calls at issue, ViSalus petitioned the FCC for a retroactive waiver of the written prior express consent rule. ViSalus did not, however, plead [**6] prior express consent as an affirmative defense. After a three-day trial the jury returned a verdict against ViSalus, finding that it sent 1,850,440 prerecorded calls in violation of the TCPA. Because the TCPA sets the minimum statutory damages at $500 per call, the total damage award against ViSalus was $925,220,000.
Nearly two months later, the FCC granted ViSalus a retroactive waiver of the heightened written consent and disclosure requirements. ViSalus then filed post-trial motions to decertify the class, grant judgment as a matter of law, or grant a new trial on the ground that the FCC's waiver necessarily meant ViSalus had consent for the calls made. Alternatively, ViSalus filed a post-trial motion challenging the $925,220,000 statutory damages award as being unconstitutionally excessive. The district court denied these motions, and ViSalus timely appealed.
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51 F.4th 1109 *; 2022 U.S. App. LEXIS 29228 **; 2022 WL 11530386
LORI WAKEFIELD, individually and on behalf of all others similarly situated, Plaintiff-Appellee, v. VISALUS, INC., a Nevada corporation, Defendant-Appellant.
Prior History: [**1] Appeal from the United States District Court for the District of Oregon. D.C. No. 3:15-cv-01857-SI. Michael H. Simon, District Judge, Presiding.
Disposition: AFFIRMED in part; VACATED in part; and REMANDED with instructions.
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