Can TCPA Class Damages Violate Due Process? The Wakefield Test
$925,220,000. That’s what a jury verdict on 1,850,440 prerecorded calls came to at $500 per call, and in 2022 the Ninth Circuit held that an award that size can be reduced if it’s so out of proportion to the offense that it violates due process. The ruling gives TCPA class defendants an argument after a verdict, but the court set the bar high. Most of a defendant’s bargaining power still comes earlier, from consent defenses raised on time and from the class definition.
What did the Ninth Circuit decide in Wakefield v. ViSalus?
It held that aggregate TCPA damages can be cut, even when $500 per call is constitutional. In Wakefield v. ViSalus, Inc., 51 F.4th 1109 (9th Cir. 2022), a jury found that a marketing company made prerecorded calls to class members, and the district court entered statutory damages of $925,220,000. The district court declined to reduce the award.
The Ninth Circuit vacated that ruling. The court wrote that “where aggregation has resulted in extraordinarily large awards wholly disproportionate to the goals of the statute, Williams implies a constitutional limit may require reduction.” It sent the case back for the district court to decide “whether the aggregate award of $925,220,000 in this class action case is so severe and oppressive” that it violated due process, and if so, by how much to reduce it.
The court affirmed everything else. ViSalus lost its bids to decertify the class and for a new trial, and the court held it couldn’t rely on consent it hadn’t raised before trial. That part of the opinion is a warning that matters more to most defendants than the damages holding.
Why can a TCPA verdict get so large?
Because the statute has a floor and no ceiling. Under 47 U.S.C. § 227(b)(3), a person may sue to recover actual losses or “to receive $500 in damages for each such violation, whichever is greater.” If the court finds the violation willful or knowing, it may increase the award to not more than three times that amount.
Wakefield put the problem this way: “Congress thus set a floor of statutory damages at $500 for each violation of the TCPA but no ceiling for cumulative damages, in a class action or otherwise.” The court added that “modern technology permits hundreds of thousands of automated calls and triggers minimum statutory damages with the push of a button.”
The math gets out of hand fast. A campaign of 200,000 prerecorded calls is $100 million at the statutory minimum. Plaintiffs’ counsel know that number, and they lead with it in settlement talks. A defendant that understands how a court would test it has a better answer than the per-call arithmetic.
What test do courts use to reduce an aggregate award?
A proportionality test with seven factors. The court held that aggregate statutory damages “are subject to constitutional limitation in extreme situations,” when they are “wholly disproportioned” and “obviously unreasonable” in relation to the goals of the statute and the conduct it prohibits.
To apply that standard, the court pointed district courts to the factors from its earlier Six Mexican Workers decision: “1) the amount of award to each plaintiff, 2) the total award, 3) the nature and persistence of the violations, 4) the extent of the defendant’s culpability, 5) damage awards in similar cases, 6) the substantive or technical nature of the violations, and 7) the circumstances of each case.”
The sixth factor is often a defendant’s best one. A call that broke a technical rule, such as a consent form missing a disclosure, reads very differently from a campaign aimed at people who never gave their number. In Wakefield, the FCC granted a retroactive waiver of its written-consent rule after the trial, and that’s the kind of fact that pushes toward the technical end.
| Factor | What helps the defense | Records that prove it |
|---|---|---|
| Award per class member | Small individual harm, such as a single short call | Call counts and durations by number |
| Total award | An award far above any measure of harm or deterrence | Expert analysis of revenue and campaign size |
| Persistence of violations | Calls stopped once a problem was found | Change logs and campaign end dates |
| Culpability | Good-faith reliance on consent or vendor assurances | Consent records and vendor contracts |
| Substantive or technical | A paperwork defect, not calls to strangers | Consent forms and the rule that was broken |
How hard is it to win a reduction?
Hard. The Ninth Circuit was blunt about it: “We stress that only very rarely will an aggregated statutory damages award meet the exacting Williams standard and exceed constitutional limitations where the per-violation amount does not,” the court wrote. It added that “Legislatures are empowered to prescribe purely punitive penalties for violations of statutes.”
The circuit has since applied Wakefield outside the TCPA. In Gessele v. Jack in the Box Inc. (9th Cir. Apr. 20, 2026), a wage case, the court read Wakefield to make the ratio between the award and the actual injury relevant. “Wakefield did not hold that ratio has the same meaning in the statutory damages context. But it cited that ratio while describing how punitive and statutory damages were analogous,” the court wrote.
That ratio point helps TCPA defendants, because the actual harm from an unwanted call is usually small. Still, the argument is a backstop. It comes after liability is decided, it only reduces an award, and a court that agrees can still enter a large judgment. A defense plan that counts on it is a plan to lose at trial.
What should a defendant do with Wakefield before trial?
Use it in settlement talks and build the record for it early. The due process argument depends on facts about culpability and persistence, and on how technical the violations were. Those facts come from the defendant’s own records and witnesses, and they’re far more persuasive when they’re in the record before a verdict.
The other lesson is about consent. ViSalus couldn’t use a consent argument it hadn’t raised before trial. Consent should be pleaded as an affirmative defense in the answer, even when the records are incomplete, and supported in discovery. The earlier posts on proving consent at summary judgment and on fighting class certification over consent cover the steps that come before any damages fight. More on the firm’s approach is on its page for TCPA class action defense.
Records to secure once a class claim is filed
- Place a litigation hold on call and text logs, dialer settings, prerecorded message files, and consent records for every number in the proposed class.
- Export opt-out and internal do-not-call entries, with the dates each was received and applied.
- Pull the Registry scrub records and version dates for any campaign that could be called telemarketing.
- Gather vendor and lead-source contracts, scripts, and any compliance reviews or change logs for the campaigns named in the complaint.
- Talk to a lawyer before responding to the complaint, contacting class members, or discussing settlement.
Questions about TCPA damages and due process
Can a court reduce TCPA statutory damages below $500 per call?
In the Ninth Circuit, a court can reduce an aggregate award if it violates due process, which in practice can bring the per-call figure below $500. The court in Wakefield didn’t set a formula. It sent the case back for the district court to decide whether to reduce the award and by how much, using the seven factors.
Does Wakefield apply outside the Ninth Circuit?
It binds federal courts in California and the other western states in the Ninth Circuit. Courts elsewhere may find it persuasive, so defendants outside the circuit should check how their own circuit has ruled. The argument itself is available everywhere because it rests on a 1919 Supreme Court due process decision, St. Louis, Iron Mountain & Southern Railway Co. v. Williams.
When should a defendant raise the due process argument?
After a verdict or judgment, in a post-trial motion, because the court needs to know the total award to test it. The facts that support it should be developed much earlier, in discovery and in the expert record. Raising the argument in settlement talks is common and often useful, since it changes how both sides value the case.
Does a large potential award stop a TCPA class from being certified?
Not by itself in the Ninth Circuit. Wakefield relied on an earlier Ninth Circuit decision, Bateman v. American Multi-Cinema, which refused to limit class actions to avoid enormous potential liability under a different consumer statute. Wakefield treats the size of the award as a question for after judgment. Defendants usually do better attacking certification on individual consent issues than on the size of the exposure.
If your company faces a TCPA class action
If your company has been sued in a TCPA class action over prerecorded or autodialed calls, the consent records and the campaign history usually decide both liability and how much a verdict could be reduced. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving prerecorded marketing calls. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statute is 47 U.S.C. § 227. The decisions are Wakefield v. ViSalus, Inc., 51 F.4th 1109 (9th Cir. 2022) and Gessele v. Jack in the Box Inc. (9th Cir. Apr. 20, 2026).
This post is general information about the Telephone Consumer Protection Act and related laws as of June 10, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.