In Wakefield v. ViSalus, Inc., Case No. 3:15-cv-1857-SI, 2019 U.S. Dist. LEXIS 104862 (D. Ore. June 24, 2019), the court decided that the $925 million verdict against defendant ViSalus should not be trebled because the evidence did not show that ViSalus acted willfully or knowingly and because trebling would serve no deterrent purpose. The court recognized that the large statutory damages verdict would have a deterrent effect on others’ conduct—read on and be deterred.
The jury found that ViSalus had placed four violative calls to plaintiff Wakefield and 1,850,436 to other class members, which led to minimum statutory damages of $925,220,000 based on the $500 per call amount in 47 U.S.C. § 227(b)(3)(B). Plaintiffs also sought to treble those damages by requesting the court find ViSalus acted willfully and knowingly, as allowed at the court’s discretion under 47 U.S.C. § 227(b)(3)(C).
The court first determined the standard of proof for a willful or knowing violation. The court agreed with the plaintiff and adopted what it stated was the “more comment interpretation that ‘willfully’ or ‘knowingly’ requires only that an unlawful act be done intentionally or volitionally, as opposed to inadvertently, and not that Defendant must have known that its conduct would violate the statute.” (*4 (citing cases from the 11th Circuit, D. Mass, E.D. Mich., N.D. Ill., and W.D. Tex.).)
The court then agreed with the defendant and found that plaintiff “must show that Defendant knew that it was engaging in the conduct that gave rise to liability. This means that Defendant must have known the following: (1) that it was placing telemarketing calls; (2) to a mobile (or cellular) telephone number or to a residential telephone landline; (3) the call used an artificial or prerecorded voice; and (4) the person being called had not given prior express consent.” (*5.) Essentially, then, “Plaintiff needed to demonstrate that [Defendant] should have known that [it was] calling a person who did not provide prior express consent.” (citing E.D. Cal. case.)
The court then analyzed whether there was evidence of willful conduct but also considered whether the enhanced damages would have a deterrent effect. There was not enough evidence of willful conduct because there was no previous suit against ViSalus and because there was no direct evidence of a high number of calls made while knowing there was no consent. Plaintiffs only put up Plaintiff Wakefield’s testimony and one consumer complaint as evidence of repeated calls after asking for the calls to stop. This was not enough here, but other plaintiffs in other circumstances could put together stronger evidence if the Caller had been sued more often, more consumer complaints had been lodged, and more individual testimony was provided.
The court also considered the deterrent effect of the treble damages, and finding none, held trebling was not appropriate. Nothing could be deterred because ViSalus had already changed its practices. Further, the court recognized that the verdict was already high enough: “Plaintiff cannot credibly argue that this amount of damages would be trivial to Defendant or insufficient to deter unlawful conduct by others.” (*7.)
An interesting but not critical note is that the court considered ViSalus’s argument that confusion in the law around TCPA consent meant that ViSalus could not have acted willfully. The court said it did not need to resolve this question to decide that the circumstances of the case did not call for enhanced damages.
