Wakefield v. ViSalus

In determining whether a Plaintiff has established a concrete injury in fact in order to have standing to sue under Article III, “an intangible injury is sufficiently concrete when Congress created a statutory cause of action for the injury.” TransUnion LLC v. Ramirez 141 S. Ct. at 2204–07.

Following the successful class action suit against ViSalus under the Telephone Consumer Protection Act ("TCPA") the FCC granted ViSalus a retroactive waiver of heightened written consent and disclosure requirements. Subsequently, ViSalus filed post-trial motions challenging class certification, seeking judgment as a matter of law, a new trial, and unconstitutional damages.  The district court denied their motions. ViSalus assigned error to the denial. On appeal, ViSalus raised 3 issues that were reviewed de novo: (1) whether Wakefield had a concrete injury in fact, (2) whether the retroactive waiver issued by the Federal Communications Commission (“FCC”) created an intervening change in the law, (3) whether the damages award violated due process for being excessive. First, “[a]n intangible injury is sufficiently concrete when Congress created a statutory cause of action for the injury.” TransUnion LLC v. Ramirez 141 S. Ct. at 2204–07. The Court reasoned that because Congress created a cause of action for robocalls, Wakefield had an injury in fact, thus standing to sue. Second, “the exception for an intervening change in law only protects those who fail to prophesy a reversal of established adverse precedent." GenCorp, Inc. v. Olin Corp., 477 F.3d 368, 374 (6th Cir. 2007). The Court reasoned that ViSalus did not qualify for this exception because they should have known either that the FCC would grant their waiver, or sought a stay pending the decision. Third, the Court reasoned that the factors listed in Six Mexican Workers and Williams can guide the lower court in determining whether the damages award violated ViSalus’ due process rights. Affirmed in part; vacated in part; and remanded with instructions.