Back in May 2019 a federal jury awarded $925 million in statutory damages against Visalus.
The award pertained to alleged violations of the Telephone Consumer Protection Act (TPCA). Visalus was accused of illegally making almost 2 million robocalls to consumers.
The $925 million amount was calculated based on Visalus making 1,850,440 calls, and the minimum awardable damages per call under TCPA being $500.
Visalus has been fighting the company-ending award since it was granted – mostly unsuccessfully.
In October 2022 however, Visalus was thrown a life raft from the Ninth Circuit Court of Appeals.
The Ninth Circuit upheld the judgment against Visalus, but took issue with the $925 million statutory damages award.
We have jurisdiction … and we affirm the district court’s refusal to decertify the class, grant judgment as a matter of law, or grant a new trial, but we reverse and remand to the district court for further proceedings regarding the constitutionality of the nearly one-billion-dollar statutory damages award.
The decision reopened the case and punted it back to the Oregon District Court for further proceedings.
That process was quickly stayed however, following Visalus signalling its intention to file a writ of certiorari with the Supreme Court.
Visalus eventually filed its writ on March 17th. In their writ, Visalus claims there is an unresolved issue with respect to marketing calls received by someone who has “given some form consent”.
Essentially Visalus argues that Visalus customers and promoters give consent to receive marketing calls when they
become a promoter or purchasing customer, voluntarily provided their number, and opted in to receive marketing communications.
On March 29th, Visalus’ writ was “distributed for conference”. Said conference is to be held between the Supreme Court Justices on April 14th.
I expect a decision on whether Visalus’ writ will be heard will be made available either on April 14th or shortly after.
While I’m not intimately familiar with the TCPA, I think it’s generally accepted that nobody likes robocalls. This has prompted TCPA and relevant legislation as a deterrent.
That said, the minimum $500 per illegal robocall set under TCPA might not have taken into consideration a company making almost 2 million illegal calls.
On the flip side, while the $500 is a minimum that can be scaled up, reducing that amount runs the risk of trivializing TCPA judgments.
Be it Visalus or some other business, I’m perfectly fine with damages running that company out of business if they’re running millions of robocalls. That amount of calling (and the annoyance it generates) doesn’t just happen overnight.
In their writ, Visalus argues;
The harm from receiving a phone call after opting in to a marketing list is far from “concrete”.
Personally I think there is “concrete harm”. Receiving robocalls is frustrating and can be time consuming. And I think such to the extent Visalus puts forth their distributors, past and present, consent to receiving marketing, that doesn’t explicitly cover being harassed over the phone.
Which is ultimately what robocall fraud is – harassment.
Stay tuned for an update on Visalus’ Supreme Court writ sometime later this month. After which BehindMLM will continue tracking proceedings in Oregon.