I read a lot of briefs.
Good briefs. Bad briefs. Long briefs. Short briefs. Briefs to trial courts, appellate courts, the supreme court. Briefs my associates write. Briefs my partners write. Briefs opposing counsel write.
Lots of briefs.
So trust me when I say this–Visalus Brief— is a really good brief.
In fact–and those of you that read this blog know that I almost never make predictions like this–I think Visalus is going to win its appeal.
It almost has to.
Backing up, Visalus is the loser of the biggest TCPA suit ever tried to a jury. In fact–as Jay Edelson will be quick to tell you–they lost the biggest privacy jury verdict in history.
The Visalus judgment origin story is the stuff of TCPA.World lore. I won’t recount it all here, but at a high level:
- Visalus loses
- A crushing judgment is entered
- Then the FCC gives it a miracle waiver of liability
- But the court refuses to apply it because it finds Visalus waived the defense
- The the court refuses to reduce the damage award on constitutional grounds
- But it does refuse to treble damages (mercy rule?)
But something almost as miraculous as the FCC’s waiver of liability happened post-judgment–and this time Visalus can’t waive it.
The Supreme Court held in Ramirez v Transunion that unnamed class members in certified cases cannot recover damages at trial unless they suffered Article III harm.
Remember, how I explained that was a super huge deal?
Well Visalus’ brand new and shiny appellate lawyers agree. And they lead with this very simple argument:
Visalus was sued for not having the right level of written consent for many calls it made. But it still had consent (for at least some of the class.) And folks that consented to calls–even if the consent did not meet the technical requirements of the regulation– could not have been harmed by calls they wanted.
Pretty strong right?
See the Visalus case exploited a legal fiction–that the failure to obtain a heightened level of consent causes harm, even when a consumer provided a lower level of consent. And given that it wasn’t even clear what level of consent Visalus needed to have at the time it obtained consent, it would be pretty unfair to hold Visalus liable for calls that were consented to (but again, not consented enough to).
That was precisely what animated the FCC’s waiver order–but, again, the Court found that issue was (ironically) waived.
But Article III standing is jurisdictional. It can’t be waived, modified, or created. It either exists, or it does not. Its objective. Black and white.
That’s why I like the concept so much.
And Ramirez says jurisdiction must exist for every single class member to recover damages–yet, not every class member is going have been harmed in any TCPA case.
Indeed, in the Visalus case it is difficult to imagine how any consenting class member was harmed. Perhaps one or two were in a “ok, I thought I wanted calls but I changed my mind and didn’t tell you, but you should have known anyway” sort of way. And one or two were probably harmed in a “well I signed the form but I didn’t read it and now I’m annoyed you’re calling me” sort of way.
But to say that every consenting class member was harmed uniformly is.. well…just not true.
So Visalus has to win. Unless…
Well, in the law the Truth doesn’t always prevail.
There are legal fictions to attend to. And those fictions generally preserve some higher principle. In theory at least.
So perhaps the Ninth Circuit fabricates another legal fiction to hold the judgment together. Something like “The regulations requiring specific written consent wouldn’t mean anything if callers could just ignore them and claim consenting consumers weren’t harmed so…we’re just going to ignore Ramirez on policy grounds.”
It shouldn’t happen. But its not impossible. And the Ninth Circuit likes to do stuff like that.
Short of something remarkable, however, Visalus is going to win the appeal. The judgment will be unwound to some extent–and perhaps entirely. And that will make for a really amazing blog post.
Can’t wait to write it.