District Court (Cal.) Denies MSJ to Yahoo! in TCPA Action on ATDS Issue; Says FCC “Backed Away” From the Human Intervention Requirement in 2015 Order

In Sherman v. Yahoo!, Inc., 2015 WL 8757028, at *4-5 (S.D.Cal. 2015), Judge Curiel found a question of fact on whether Yahoo!’s IM system required human intervention.

To support its position, Yahoo relies on district court cases, which have held that where a message must be “triggered” by human intervention, the system is not an ATDS. (ECF No. 134-1 at 8-12 (citing Glauser v. GroupMe, Inc., No. C 11-2584 PJH, 2015 WL 475111 (N.D. Cal. Feb. 4, 2015), Marks v. Crunch San Diego, LLC, 55 F. Supp. 3d 1288 (S.D. Cal. 2014), Modica v. Green Tree Servicing, LLC., No. 14 C 3308, 2015 WL 1943222 (N.D. Ill. Apr. 29, 2015), Gragg v. Orange Cab Co., 995 F. Supp. 2d 1189 (W.D. Wash. 2014), and McKenna v. WhisperText, No. 5:14-cv-00424-PSG, 2015 WL 428728 (N.D. Cal. Jan. 30, 2015)). Each of these cases was decided prior to the July 2015 FCC rule making decision, and involve distinguishable fact patterns with varying amounts of human intervention by the platform user and actual sender of the text message.   Of these cases, Glauser is most analogous to the present case. . . . First, Glauser is distinguishable because it was decided before the July 2015 FCC order which backed away from the “human intervention” element by rejecting the argument that a dialer is not an autodialer unless it has the capacity to dial numbers without human intervention. 30 F.C.C. Rcd. 7976. In addition, Glauser applies a “but-for” type of analysis which focuses on the triggering event leading up to the offending text. This form of analysis was rejected by another district court that considered the “human intervention” issue in the context of the Yahoo PC2SMS platform. In Johnson v. Yahoo!, the court observed that “[a] person will always be a but-for cause of any machine’s action, and therefore, I conclude that the FCC’s ‘human intervention’ gloss on the statute requires more than but-for causation.” Johnson v. Yahoo!, 2014 U.S. Dist. LEXIS 171325, *17 (N.D. Ill. Dec. 11, 2014). The Court agrees. The Court finds that but-for analysis is inconsistent with the July 2015 FCC instruction to apply a case-by-case analysis to how the human intervention element applies to a particular type of equipment.  Reviewing the evidence in the light most favorable to the Plaintiff, the Court finds that there are genuine issues of fact as to whether the PC2SMS system is an ATDS. A reasonable jury could conclude that the Welcome text is produced and sent by an ATDS as the term is defined in the TCPA.