PORTLAND, Ore. — A federal judge has upheld a $925 million damages award in a class-action case against a Michigan-based marketing company that a jury in Portland, Oregon found had conducted unlawful telemarketing practices.
ViSalus Inc. placed almost 2 million recorded robocalls to people across the country offering deals on weight-loss products, dietary supplements and energy drinks, The Oregonian/OregonLive reported.
Lori Wakefield, a Molalla, Oregon, woman who had once been a promoter for the company, brought the suit, arguing the outfit’s prerecorded calls violated the Telephone Consumer Protection Act.
Each violation called for a $500 penalty, and a jury in April 2019 determined the company made 1,850,436 unlawful automated calls.
U.S. District Judge Michael H. Simon found the award was based on simple math.
“The jury found that ViSalus committed a stratospheric number of TCPA (Telephone Consumer Protection Act) violations. It is no surprise that the TCPA’s constitutionally valid minimum penalty of $500 for each violation has catapulted ViSalus’s penalty into the mesosphere,” Simon said in his opinion.
Attorney Benjamin G. Shatz, representing ViSalus, argued the damage award was “absurd” and would be the “death sentence” for ViSalus. He urged the court to reduce the damages to less than a dollar per call, “to pass Constitutional muster.”
The judge dismissed that argument.
“ViSalus’s understanding of the limitations on damages imposed by due process implies that a constitutional penalty for a single violation becomes unconstitutional if the defendant commits the violation enough times,” the judge wrote.
Simon cited a 2020 opinion by the 7th U.S. Circuit Court of Appeals in a case the government brought against Dish Network, which read: “Someone whose maximum penalty reaches the mesosphere only because the number of violations reaches the stratosphere can’t complain about the consequences of its own extensive misconduct.”
ViSalus and Shatz did not immediately return an email seeking comment.
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