As you head into the weekend be grateful if you’re not associated with multi-level marketing company ViSalus.
This is that TCPA case that should keep every TCPA class action defendant (and attorney) up at night. What a dumpster fire of a train wreck.
As we have written about on numerous occasions now, ViSalus was absolutely hammered by an Oregon District court for TCPA violations found by the jury to total in excess of 1.8mm. The resulting judgment totals $925MM–even with the Court declining to treble damages.
While the Court has already once refused to set aside the judgment, today it again affirmed the size of the judgment and refused to reduce it in light of Constitutional concerns. Calling ViSalus’ TCPA violations “stratospheric” the Court issued a ruling today refusing to reduce the $925MM damage award on constitutional grounds.
While the ruling is obviously extremely bad news for ViSalus, it is also problematic for all TCPAWorld defendants. The Constitution’s due process clause appears to protect defendants from arbitrary exposure to damage wards that are far out of line with the harm caused by the underlying conduct. Indeed, the Eighth Circuit Court of Appeals has held directly that TCPA judgments that are out of line with actual harm cannot withstand constitutional inquiry.
But the Court overseeing the ViSalus trial disagreed, concluding that ViSalus is bound by the judgment and cannot complain that it faces such a high judgment in light of the huge number of TCPA violations the jury found.
For the curious (sadistic?) the brutal ruling can be found here: Wakefield-ViSalus order denying damages reduction
Also Jay insisted that I remind everybody that it was Edelson, PC that obtained this staggering verdict (largest privacy verdict ever?). As if he’d ever let anyone forget it… ha.