Sherman v. Yahoo! Inc.
2014 U.S. Dist. LEXIS 13286
S.D. Cal.2014Background
- Plaintiff Rafael Sherman received a single unsolicited SMS notification from a Yahoo! Messenger number after a third party sent him an IM; he never provided his mobile number to Yahoo! or subscribed to the Messenger service.
- The notification read that a Yahoo! user sent a message and instructed to reply or visit a help link; a second substantive SMS followed from the third party.
- Yahoo!’s PC-to-SMS service automatically checks whether a recipient number has previously received a PC-to-SMS message; if not, it sends a single automated notification and may store the number.
- Plaintiff sued under the TCPA, 47 U.S.C. § 227(b)(1)(A), alleging the notification was sent using an ATDS and without prior express consent, seeking statutory damages.
- Yahoo! moved for summary judgment arguing (1) a single confirmatory text is not covered by the TCPA, (2) its system is not an ATDS, and (3) CDA § 230(c)(2)(B) immunizes Yahoo!; the court denied summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a single confirmatory SMS without prior consent falls under the TCPA | Sherman: TCPA text is content-neutral; a single call/text can be actionable without consent | Yahoo!: Single confirmatory notification is not the injury TCPA targets and is exempt | Court: A single text may be actionable under §227(b)(1)(A)(iii) absent prior express consent; denial of summary judgment on this ground |
| Whether Yahoo!’s PC-to-SMS system is an ATDS (capacity to store/produce and dial numbers) | Sherman: Yahoo!’s servers store numbers and expert opines system has capacity to store/produce/dial without human intervention | Yahoo!: System lacks present capacity to generate random/sequential numbers or autodial; any such capacity would require new software | Court: Genuine factual dispute exists about the system’s capacity; denied summary judgment on ATDS issue |
| Whether Yahoo! is immune under CDA §230(c)(2)(B) for providing technical means to block/filter objectionable content | Sherman: Yahoo! did not screen content nor make available filtering to block third‑party content in the challenged act | Yahoo!: The notification included a help link enabling users to block/opt-out, qualifying as technical means | Court: §230(c)(2)(B) inapplicable because Yahoo! did not block/filter objectionable material here; immunity denied |
| Whether reconsideration or interlocutory appeal was warranted on ATDS capacity standard | Sherman: N/A (opposes) | Yahoo!: Court erred relying on FCC commentary and present-vs-future capacity; seeks interlocutory appeal | Court: Denied reconsideration (Ninth Circuit precedent requires analysis of equipment capacity); denied certification for interlocutory appeal |
Key Cases Cited
- Satterfield v. Simon & Schuster, 569 F.3d 946 (9th Cir. 2009) (statutory ATDS inquiry focuses on equipment’s capacity to store/produce and dial numbers)
- Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036 (9th Cir. 2012) (affirming focus on equipment capacity and citing FCC guidance on predictive dialers)
- Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. 2012) (courts should apply common-sense context when interpreting the TCPA)
- Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169 (9th Cir. 2009) (scope of CDA §230 immunity limited to screening/blocking of objectionable content)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (summary judgment standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (moving party’s burden on summary judgment)