ViSalus, Inc. v. Lori Wakefield, Individually and on Behalf of All Others Similarly Situated

This case arises from the intersection of this Court’s opinion in TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), with a class action lawsuit under the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227. TransUnion limited Article III standing by holding that all plaintiffs in a class action must have suffered a “concrete injury in fact”—not just a bare statutory violation—in order to bring suit in federal court. Petitioner ViSalus, Inc. (“ViSalus”) was sued in 2015 by named plaintiff Lori Wakefield, a former ViSalus promoter, on behalf of herself and a class of others who had provided their phone numbers to ViSalus and consented to receive marketing communications, but whose written consent did not meet the technical requirements of a newly adopted FCC regulation. Plaintiffs claimed only statutory damages. The harm from receiving a phone call after opting in to a marketing list is far from “concrete,” and the impact of TransUnion on class action lawsuits brought under the TCPA has been assessed unevenly by federal courts nationwide, creating a conflict between the Ninth and Eleventh Circuits. The question presented is: Whether, in light of TransUnion, receipt of a phone call after opting in to receive marketing communications is a “concrete injury in fact” sufficient to confer Article III standing for purposes of a TCPA action.