Yahoo Challenges TCPA Text Message Class Action

In a Telephone Consumer Protection Act (TCPA) lawsuit, Yahoo pushed back on the litigation’s aim to certify a Class Action lawsuit against the company.

Under TCPA, sending an unsolicited text message to cell phones and autodialed/prerecorded calls to cell phones or landlines or requires express consent from the recipient.

If express consent was not given, each TCPA violation may require companies to award plaintiffs up to $500 per phone call and up to $1,500 per phone call if the consumer can show that TCPA was violated knowingly and willingly.

Rachel Johnson and Zenaida Calderin are the lead plaintiffs in the proposed class action case, and their lawsuits were consolidated in July 2014. Johnson said she received the welcome text message along with another text message from a debt alleviation service following her personal application for loan services.

Johnson opted in to receive texts from the debt service but not Yahoo. Calderin said she received the Yahoo welcome message after she received a text from a friend.

The proposed Class that the plaintiffs seek to certify include Sprint Corp. and T-Mobile USA users who received a welcome text message from Yahoo immediately after they received a message from a person who used the Yahoo messenger software. Plaintiffs claim that these unsolicited text messages constitute telemarketing or advertising, and thus are contrary to the provisions of TCPA.

Yahoo argues that the texts sent were purely of an informational nature and were not intended to advertise or be used for telemarketing purposes. The company further explains that the message alerts the recipient that they received a message from a Yahoo user using Yahoo Messenger’s free PC2SMS service.

This service allows PC users to send and receive messages from cell phone text users. The welcome message explains what the message is and instructs users how to respond to the message or block future messages.

Yahoo also does not believe that it is a possibility to ascertain who the class members are, though the plaintiffs say telephone records could be subpoenaed. The company says there is no way to know who did or did not provide consent, or who revoked consent. They assert the plaintiffs’ class definitions “promote piecemeal litigation and are therefore not superior.” Lastly, Yahoo says the way in which the plaintiffs received the messages were not the same and they should not be included together.

In Yahoo’s request to dismiss the class certification Yahoo did include some information about how they believe the lead plaintiffs were not representative of the class. The company’s counsel states, “Calderin likely participated in, or at least had knowledge of, a plan to manufacture this lawsuit by triggering her receipt of the Welcome Message.” As for the second lead plaintiff, “Plaintiff Johnson failed to preserve her mobile phone after she retained counsel and filed her claims against Yahoo.”

The plaintiffs are represented by Keith James Keogh, Timothy J. Sostrin, Katherine Marie Bowen and Michael S. Hilicki of Keogh Law Ltd., Vincent L. DiTommaso, Peter S. Lubin and John Auchter of Ditommaso Lubin PC, Seyed Abbas Kazerounian of Kazerouni Law Group APC and Joshua Branden Swigart of Hyde & Swigart.

The Yahoo TCPA Lawsuit is Rachel Johnson v. Yahoo Inc., Case No. 1:14-cv-02028 in the U.S. District Court for the Northern District of Illinois.

TCPA Lawsuit Information

If you have received an unsolicited text message (text spam) or been contacted on your cell or home phone by an automated telephone dialing system (robocall), you may have a legal claim for violations of TCPA. Consultations with one of our attorneys are free and are offered with no risk or obligation.

Join a Free TCPA Class Action Lawsuit Investigation

If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.

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