On April 12, 2019, a jury in Oregon federal court found that the marketing company, ViSalus, had made 1,850,436 unlawful automated calls in violation of the Telephone Consumer Protection Act (“TCPA”). Each violation carries with it a $500 statutory penalty, which could translate those 1.8 million + calls into damages of more than $925 million – potentially making this the largest TCPA verdict in history. Notably, however, no damages have been awarded yet as the judge has reserved ruling on damages. Moreover, counsel for ViSalus believes that the jury’s special verdict has opened legal disputes about whether there is evidence to support the number of unlawful calls and even whether the class should be decertified. The long and short of it is that the dispute is far from over as uncertainty remains regarding the viability of certification and a damages award. Undeniably, several hurdles remain before this case reaches its end.
What the verdict does signal is the risk companies in TCPA class actions face, especially with juries. The prospect of a verdict this large also will likely serve as fuel for the plaintiff’s bar, spurring additional litigation and potentially making it more difficult to settle TCPA class actions reasonably. That said, if the tides change and the class can be decertified or damages denied, then this case could go on the books as win for defendants reaffirming the mandate that plaintiffs need to prove every element of their case.
If you are interested in discussing how Michael Best can assist you in handling Telephone Consumer Protection Act matters or questions please contact Michelle Dama or Albert Bianchi, Jr.