Judge deletes class action vs Yahoo over Messenger texts, says 'tens of thousands' may have consented

By Scott Holland | Feb 16, 2018

A federal judge has broken up a class action accusing Yahoo of sending text messages in violation of federal law, saying information provided after he certified the class indicated perhaps tens of thousands of class members may have actually consented to receive the texts when they signed up for Yahoo’s services.

In an opinion issued Feb. 13 in Chicago, Judge Manish S. Shah decertified the class in a complaint Rachel Johnson lodged against Yahoo Inc.

In that lawsuit, Johnson asserted Yahoo violated the Telephone Consumer Protection Act when it sent a text message to explain why she’d received a different message from someone else a few moments earlier.

The messages came across through Yahoo Messenger, an instant messaging client that utilizes PC2SMS, allowing people to send text from a computer to a cellphone number. The first time a phone receives such a message, the service automatically sends a follow-up message reading: “A Yahoo user has sent you a message. Reply to that SMS to respond. Reply INFO to this SMS for help or go to y.ahoo.it/imsms.”

Johnson got such a message on March 19, 2013, and said it violated the Telephone Consumer Protection Act because she did not consent to receipt of an automated message. Shah certified her complaint as a class action on Jan. 4, 2016, incorporating anyone who got a Yahoo welcome message in March 2013 through a Sprint mobile device but whose number was not associated with a Yahoo account. The class definition later was clarified to specify it was limited to Sprint users, not all subscribers.

In an August 2016 subpoena response, Shah wrote, “Sprint produced previously undisclosed information related to the identities of the users and subscribers of the cellular telephone numbers assigned to Sprint and that received the welcome message.” After both sides deposed a Sprint representative, Yahoo moved to decertify the class based on manageability concerns.

Yahoo said Johnson’s class definition didn’t do enough to assert that everyone who would be incorporated never gave Yahoo some form of consent to receiving an automatically generated text such as the welcome message. In his Feb. 13 opinion, Shah wrote, “in certifying the class, I acknowledged that a defendant could defeat class certification if it presented specific evidence showing that a significant percentage of the class consented.”

The key plank of Yahoo’s argument is a portion of its universal terms of service agreement: “Yahoo! may provide you with notices, including those regarding changes to the [Terms of Service], including by but not limited to email, regular mail, SMS, MMS, text message, postings on the Service, or other reasonable means now known or hereinafter developed.” If a welcome message went to a number that belongs to anyone — a Sprint subscriber or user — who at any point accepted Yahoo’s terms of service, on any platform, the welcome message could be considered sent with consent.

Yahoo reviewed Sprint’s records and said “certain common names matched with thousands of Yahoo user accounts, and even limiting the results to less common names … can now show that tens of thousands of potential class members may have consented.”

Yahoo said 47,762 unique Sprint customer names matched Yahoo accounts, and in 65,061 cases, a number that received a welcome message matched a number that was provided to defendant in registering a Yahoo! account.

Johnson argued Yahoo’s evidence is inconclusive, but Judge Shah said Yahoo only needs to demonstrate “proving consent requires individualized analysis” to foster decertification. Johnson also suggested redefining the class to exclude members who might have consented, but did not actually propose a new definition.

Johnson and the putative class are represented by the firms of Kazerouni Law Group APC, of Costa Mesa, Calif.; Keogh Law Ltd., of Chicago; and Hyde & Swigart, of Phoenix.

Yahoo is represented by the firms of Gibson, Dunn & Crutcher LLP, of Los Angeles; and Chapman Spingola LLP, of Chicago.

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Organizations in this Story

Chapman Spingola LLP Gibson, Dunn & Crutcher LLP Hyde & Swigart Kazerouni Law Group Keogh Law Ltd. U.S. District Court for the Northern District of Illinois Yahoo!

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