Sherman ex rel. Situated v. Yahoo! Inc.

• Decision Date: 03 July 2014
• Docket Number: Case No. 13cv0041–GPC–WVG.
• Citation: 997 F.Supp.2d 1129
• Court: U.S. District Court — Southern District of California
• Parties: Rafael David SHERMAN, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. YAHOO! INC., Defendant.

997 F.Supp.2d 1129

Rafael David SHERMAN, Individually and on Behalf of All Others Similarly Situated, Plaintiff,

v.YAHOO! INC., Defendant.

Case No. 13cv0041–GPC–WVG.

United States District Court,

S.D. California.

Signed Feb. 3, 2014.

Order Denying Reconsideration July 3, 2014.

Abbas Kazerounian, Jason A. Ibey, Kazerouni Law Group, APC, Costa Mesa, CA, Joshua Swigart, Hyde & Swigart, San Diego, CA, for Plaintiff.

Ian Charles Ballon, Greenberg Traurig LLP, Santa Monica, CA, Wendy Michelle Mantell, Greenberg Traurig, LLP, Los Angeles, CA, for Defendant.

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

GONZALO P. CURIEL, District Judge.

Before the Court is Defendant Yahoo! Inc.'s (“Yahoo!”) motion for summary judgment. (Dkt. No. 9.) The motion has been fully briefed. (Dkt. Nos. 17, 23.) For the reasons set out below, the Court hereby DENIES Defendant's motion for summary judgment.

BACKGROUND

This case concerns a notification message that was sent to a cellular phone number as part of Yahoo!'s Instant Messenger service. Plaintiff, individually and on behalf of those similarly situated, claims such messages violate provisions of the Telephone Consumer Protection Act (the “TCPA”), 47 U.S.C. § 227(b)(1)(A), and seeks statutory damages of $500 per negligent violation and up to $1500 per knowing or willful violation. (Dkt. No. 1, “Complaint.”) Specifically, Plaintiff alleges that Defendant violated the TCPA by “illegally contact[ing] Plaintiff and the Class members via their cellular telephones by using unsolicited SPAM text messages.” (Complaint ¶ 26.)

On or about January 7, 2013, Plaintiff received two text messages on his cellular telephone from a number identified as 924–665–01. (Dkt. No. 17–2, “Sherman Decl.,” ¶ 4.) The first text message, which is the basis for Plaintiff's suit, stated:

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.

(Complaint ¶ 15; Sherman Decl. ¶ 5.) The second text message stated: “hey get online I have to talk to you.” (Complaint ¶ 14; Sherman Decl. ¶ 6.) Plaintiff alleges Yahoo! sent the first message via an automatic telephone dialing system (“ATDS”) as defined and prohibited by the TCPA. (Complaint ¶¶ 17–18.) Plaintiff alleges he never provided Yahoo! with his mobile phone number, nor sent or received a similar text message from the aforementioned number. (Complaint ¶¶ 8–9, 13; Sherman Decl. ¶¶ 8–9.) Plaintiff also alleges he was not a subscriber of Yahoo!'s Instant Messenger Service at the time he received the messages. (Sherman Decl. ¶ 10.)

Defendant describes Yahoo! Messenger as an instant messaging client and associated protocol provided by Yahoo! free of charge that can be downloaded and used by anyone registered as a user with a Yahoo! ID. (Dkt. No. 9–2, “Choudhary Decl.,” ¶ 3.) Yahoo! offers a feature called the Mobile SMS Messenger Service (“PC to SMS Service”), which allows registered Yahoo! users to send instant messages to mobile devices from their computers through the Yahoo! Messenger platform. (Choudhary Decl. ¶ 4.) “PC to SMS Service” converts instant messages into SMS messages (commonly referred to as text messages) so that they will be received on mobile devices. (Choudhary Decl. ¶ 5.) Recipients can then reply from their mobile devices, and the sender will receive the reply message as an instant message. ( Id.) This tool allows people who do not own mobile phones to send and receive text messages from their computers. ( Id.)

Yahoo! sends a mobile phone user a notification message in response to an instant message from an unidentified third party. Defendant utilizes the following Yahoo! Messenger notification process:

When a Yahoo! user sends a message using the PC to SMS Service, Yahoo! automatically verifies whether anyone previously had sent a message to the intended recipient's telephone number through the PC to SMS Service. If the recipient's telephone number has not previously been sent a text message ... then a single notification message is sent, alerting the recipient that a friend ... sent a message.... It also instructs the recipient to “Reply INFO to this SMS for help or go to y.ahoo.it/imsms.” This confirmatory message is automatically generated as a result of the instant message initiated by a Yahoo! user.

(Choudhary Decl. ¶ 8.) The mobile phone user can then utilize three methods to opt-out of receiving future “PC to SMS Service” messages.¹ Yahoo! sends the notification message only if the mobile phone user has not previously received a message via the “PC to SMS Service.” Here, Plaintiff had not previously received a message via the “PC to SMS Service” nor had he provided Yahoo! his mobile phone number. Accordingly, Plaintiff received a text message from Yahoo! when a third party sent him an instant message via Yahoo!' s Instant Messenger service. (Complaint ¶ 21; Sherman Decl. ¶¶ 8–9.)

Defendant's motion for summary judgment is based on the following three arguments: (1) Plaintiff's claim must fail as a matter of law because the TCPA was not intended to reach a single confirmatory text message; (2) This case does not involve use of an Automatic Telephone Dialing System (“ATDS”) as defined by the TCPA; and (3) Yahoo! is immune from liability under the Good Samaritan exemption in the Telecommunications Act. (Dkt. No. 14, “MSJ.”)

DISCUSSION

I. Legal Standards

Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). When deciding a summary judgment motion, a court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Hunt v. City of Los Angeles, 638 F.3d 703, 709 (9th Cir.2011). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Material facts are those that might affect the outcome of the case. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute as to a material fact is “genuine” if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id.

Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). On an issue where the nonmoving party will bear the burden of proof at trial, the moving party may carry its initial burden of production by submitting admissible “evidence negating an essential element of the nonmoving party's case,” or by showing, “after suitable discovery,” that the “nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1105–06 (9th Cir.2000); see also Celotex, 477 U.S. at 324–25, 106 S.Ct. 2548 (moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case).

When the moving party has carried its burden, the nonmoving party must respond with specific facts, supported by admissible evidence, showing a genuine issue for trial. Fed.R.Civ.P. 56(c), (e). But allegedly disputed facts must be material—the existence of only “some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson, 477 U.S. at 247–48, 106 S.Ct. 2505.

II. Telephone Consumer Protection Act (“TCPA”)

The TCPA was enacted to “protect the privacy interests of residential telephone subscribers by placing restrictions on unsolicited, automated telephone calls to the home and to facilitate interstate commerce by restricting certain uses of facsimile machines and automatic dialers.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir.2009) (quoting S.Rep. No. 102–178, at 1, 1991 U.S.C.C.A.N. 1968 (1991)). In particular, the TCPA makes it illegal:

(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice—

...

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call[.]

47 U.S.C. § 227(b)(1)(A)(iii) (emphases added). Congress authorized a private right of action to enforce the Act. See47 U.S.C. § 227(b)(3). Additionally, Congress directed the Federal Communications Commission (“FCC”) to “prescribe regulations to implement the requirements of” the TCPA. See47 U.S.C. § 227(b)(2).

A. Single Confirmatory Text Message

The parties dispute whether Yahoo!'s notification sent to Plaintiff was consented to and constitutes a single, confirmatory text message not intended to be covered by the TCPA. Federal courts have consistently concluded that “when a customer provides a company his or her phone number in connection with a transaction, he or she consents to receiving calls about that transaction.” Emanuel v. Los Angeles Lakers, Inc., CV 12–9936–GW SHX, 2013 WL 1719035 (C.D.Cal. Apr. 18, 2013) (citing Saunders v. NCO Fin. Sys., 910 F.Supp.2d 464, 467–68 (E.D.N.Y.2012) (compiling cases including Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir.2012))). These decisions follow the FCC's common sense approach of interpreting the TCPA to exempt consensual text messages. In...