In a much anticipated opinion and big defense victory, the 3rd Circuit granted summary judgment this week in favor of Defendant Yahoo in a reassigned number class action case involving thousands of text messages to Plaintiff’s cell phone using an autodialer. The Court noted that lawsuit has always depended upon Plaintiff’s assertion that Yahoo’s Email SMS Service was an “automatic telephone dialing system,” i.e., an autodialer, finding ultimately that Plaintiff could not point to any evidence that created a genuine dispute of fact as to whether Yahoo’s Email SMS Service had the present capacity to function as an autodialer. Dominguez v. Yahoo, Inc., No. 17-1243, 2018 U.S. App. LEXIS 17350, at *3, *12 (3d Cir. June 26, 2018).
In 2013, Dominguez filed a putative class action alleging that Yahoo had violated the TCPA when he received 27,800 text messages from Yahoo over the course of 17 months intended for the prior owner. Because the TCPA makes it unlawful to send a non-emergency text message to any phone number assigned to a cellular telephone service, i.e. a cell phone, using any automatic telephone dialing system, Dominguez, on behalf of himself and other class members sought a big class settlement for alleged violations.
But not so fast said the Third Circuit in its well-reasoned opinion which affirmed the lower Court’s grant of summary judgment in favor of Yahoo. Focusing heavily on Plaintiff’s deficient expert reports, the Court noted that there was a lack of any explanation as to how the Email SMS System that sent text messages to Plaintiff actually did or could generate random telephone numbers to dial. Thus, Plaintiff’s expert reports did not shed light on the key factual question at issue in the case—whether the Email SMS System functioned as an autodialer by randomly or sequentially generating telephone numbers, and dialing those numbers.
Because Plaintiff could not point to any evidence that creates a genuine dispute of fact as to whether the Email SMS Service had the present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers, summary judgment was not warranted in his favor. On the contrary, the record indicated that the Email SMS Service sent messages only to numbers that had been individually and manually inputted into its system by a user.
Finally, the Court acknowledged that while there is little doubt that Dominguez suffered great annoyance as a result of the tens of thousands of unwanted text messages sent over a year and a half period, those messages were sent precisely because the prior owner of Dominguez’s telephone number had affirmatively opted to receive them, not because of random number generation.
So there you have it folks, another ATDS ruling post-ACA Intl. again emphasizing the importance of the plain language of the statute – an ATDS is “equipment which has the capacity-(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers” – emphasis on random or sequential number generator.
