Judge Won’t Dismiss Yahoo Text Message Class Action Lawsuit

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A California federal judge won’t dismiss a class action lawsuit against Yahoo Inc. that alleges the company violated the Telephone Consumer Protection Act (TCPA) by sending out unsolicited text messages.

U.S. District Judge Gonzalo Curiel said in his order denying Yahoo’s motion for summary judgment that one unsolicited text message was enough for a class action lawsuit claiming a violation of the TCPA.

Judge Curiel rejected Yahoo’s argument that the TCPA did not protect individuals from “confirmatory text messages” like it sent out to Rafael Sherman, the plaintiff in the class action lawsuit.

Sherman filed the Yahoo text message lawsuit in January 2013, claiming that he received a text message from the Internet company notifying him that someone was trying to contact him on Yahoo’s online instant messenger. According to Sherman, he never gave Yahoo his cellphone number and had not consented to the text messages.

Sherman says he received a text message from Yahoo on Jan. 7, 2013 saying that a Yahoo user had sent him a message along with instructions on how to reply via his cell phone. It came with a follow up message from someone saying, “hey get online I have to talk to you.”

According to the court documents, Sherman had at one point agreed to receive text messages from Yahoo, but later on changed his mind and “opted out of receiving text message notifications.”

Sherman argues that Yahoo used an automated telephone dialing system (ATDS) that is also illegal under the TCPA.

“The court concludes that, absent prior express consent, a single call or text with the use of an ATDS may be actionable under the TCPA,” Judge Curiel explained.

Yahoo has tried to argue that its “PC to SMS Service,” which takes a message sent on someone’s computer and sends it to someone’s phone as a text message, is not the same as a message or phone call sent with an ATDS, saying that the Yahoo Messenger system neither stores nor generates phone numbers automatically.

However, Judge Curiel said he’s not sure this is true because there is conflicting testimony on the matter from Yahoo’s engineers, which needs to be examined further.

“The court concludes there is a genuine issue of material fact as to whether the equipment Yahoo utilizes for the PC to SMS Service constitutes an ATDS within the meaning of the statute,” the judge said.

Sherman also had not sent a message first via Yahoo Messenger that someone was responding to, which may have merited the the text message.

The California federal judge would not address the intent of Congress when it passed the TCPA, saying that the law is “clear and unambiguous,” adding that the Federal Communications Commission has also released additional guidelines saying that the content of a text message or a phone call did not negate the TCPA.

Curiel also did not address Yahoo’s argument that it should be immune from the allegations because they were acting according to the “good samaritan” portion of the Communication Decency Act, which allows internet companies from liability if they contact a user in order to screen or block potentially offensive content.

The plaintiff is represented by Abbas Kazerounian and Jason A. Ibey of Kazerounian Law Group APC, and Joshua Swigart of Hyde & Swigart.

The Yahoo Text Message Class Action Lawsuit is Rafael David Sherman v. Yahoo! Inc., Case No. 13-cv-0041, in the U.S. District Court for the Southern District of California.

If you or someone you know receives unsolicited faxes, phone calls, or text messages, legal options are available. Learn more and get a free legal consultation regarding a claim’s eligibility at the Text Message Spam, Cell Phone Call TCPA Class Action Lawsuit Settlement Investigation.  Experienced legal professionals are available to determine if you have case, so act now.