This article was originally published in Venable's All About Advertising Law Blog.
In a big win for Yahoo!, the U.S. District Court for the Southern District of California denied certification of a putative class in a suit alleging that Yahoo! violated the Telephone Consumer Protection Act (“TCPA”). The litigation arose out of claims that Yahoo! spam-texted consumers by allowing its users to send text messages from a computer to a mobile phone. In order to send a text message via Yahoo! Messenger, the user must either select the recipient’s name from the user’s Yahoo! contact list or manually input the recipient’s mobile number in the Messenger window. Yahoo!, then, automatically checks to see if anyone has used its Messenger service to send a message to that mobile number. If not, Yahoo! sends a “Welcome Message” to the recipient providing a general explanation of the feature. Yahoo! users agree to the terms of service, and over the years some of these terms of service have included consent for Yahoo! to send text messages. The plaintiffs claimed that the “Welcome Message” violates the TCPA prohibition on sending automated text messages through an “automatic telephone dialing system” without the recipient’s consent.
While the merits of the claim have yet to be decided, the court rejected the plaintiffs’ motion for class certification on several grounds. First, it found that the proposed class was not sufficiently ascertainable because the plaintiffs could not demonstrate any reliable way to identify the putative class members. While the plaintiffs obtained a complete list of mobile numbers that received the “Welcome Message” during the class period, Yahoo! does not necessarily have the names, emails, or postal addresses for those numbers. The court explained that “[w]ithout this information, the class members’ identities cannot be ascertained, nor can these individuals be contacted.”
Second, the court rejected several schemes to find the information including a proposal to utilize a reverse lookup tool, self-identification, and a subpoena to AT&T for subscriber records. Furthermore, the court found that individual questions of consent predominated over common questions of law because individual inquiry would be necessary to identify the consent profile of each class member.
Given these issues, the court held that class treatment was not the best method for resolving the case. Going even further, the court pragmatically noted that, “even if Yahoo were to prevail in this action, it still would be subject to suit for every other month it sent the Welcome Message” because the plaintiffs narrowed the class period to one month in 2013 and to one cellular service provider. According to the court, “the plaintiffs’ highly circumscribed class definition seems to offend the very purpose of the rule.”
Looking to future cases following this denial of class certification, litigants still are faced with fact-dependent questions of what will be sufficient to form a class. Here, Yahoo! succeeded based on the plaintiffs’ failure to show there was a workable means of ascertaining the class because Yahoo!’s sign-up protocol for its Messenger service is designed to preserve privacy by not requiring proof of a user’s real name, thus making a reverse look-up impossible. This arrangement also undermined the value of subpoenaing records from the cellular service. Finally, Yahoo! users provided express consent to receive text messages in a variety of ways, including agreement to successive terms of service agreements and through providing the user’s mobile number to Yahoo!. These myriad means of consent undercut a finding of predominance.
Keep following this blog for more updates on recent TCPA cases. In the meantime, please see this compiled list of recent TCPA class action cases.