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By: Jennifer Lee
On Friday, April 12, 2019, a federal jury in Oregon rendered a verdict in a certified class action that could leave ViSalus, Inc. on the hook for $925 million for making more than 1.85 million unsolicited robocalls in violation of the Telephone Consumer Protection Act (“TPCA”). The case is Wakefield v. ViSalus Inc., Case No. 3:15-cv-01857, in the U.S. District Court for the District of Oregon.
The TCPA prohibits prerecorded calls to cell phones and home phones without prior written consent from the recipient. The TCPA also prohibits the use of an automated dialing system (“ATDS”) to place calls to cell phones without prior written consent. This was a non-issue as ViSalus had already conceded that it used an ATDS for the calls at issue.
During the three-day trial, the named plaintiff and class representative Lori Wakefield testified that she had received four prerecorded calls from ViSalus on her home phone even though she did not consent to such calls. The jury believed her and concluded that the four calls received by Wakefield and the 1.85 million calls received by members of the certified class violated the TCPA.
Statutory damages for TCPA violations are $500 per call, and with more than 1.85 million calls at issue, this verdict could translate into approximately $925 million in damages for ViSalus. But there is more. Since the TCPA allows for treble damages for deliberate violations, if U.S. District Judge Michael Simon finds that ViSalus “willfully or knowingly” violated the statute, ViSalus may be subject to $2.775 billion in damages.
This verdict has wide-reaching implications for companies. It shows that jurors are receptive to TCPA class actions and do not view them as nuisance cases. This is in part because consumers are being bombarded by unwanted telemarketing calls, which are at historical highs and increasing every year. It also means that companies will have a harder time settling these cases and will lead to higher settlement amounts as the plaintiffs’ bar becomes more willing to take TCPA class actions all the way to trial.
If you have any questions regarding the TCPA, including compliance and defending against a TCPA class action, please contact Jennifer Lee at [email protected].