In Johnson v. Yahoo!, Inc., 2016 WL 25711, at *1-2 (N.D.Ill. 2016), Judge Shah found that part of a TCPA class could be certified against Yahoo!. The facts were as follows.
Yahoo! Messenger also allows users to send personalized messages to people’s cell phones through a feature called Mobile SMS Messenger Service, or PC2SMS. PC2SMS bridges the gap between the online and SMS worlds by converting the Yahoo! user’s online instant message into a text message that is sent to a recipient’s cell phone number. The details of this system are set forth in the prior order denying summary judgment, see [89], but suffice it to say for present purposes that the first time a given cell phone number receives a text message from the PC2SMS system, the number is also sent a text message stating: “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.” The parties refer to this stock message as the “Welcome Message.” *2 Plaintiff Rachel Johnson received the Welcome Message on March 19, 2013. It was sent in connection with a spam text message Johnson received via PC2SMS, which stated: “Do you want to be freed from of [sic] your payday advance loans call _888.9064165.” Neither party has determined who sent this underlying message, but defendant hypothesizes that the sender was a payday lender Johnson previously borrowed money from. Plaintiff Zenaida Calderin received the Welcome Message on April 7, 2014, in connection with a text message sent by Calderin’s co-worker.
Judge Shaw found the Plaintiff to be atypical of part of the purported class that she intended to represent. In particular, the Court noted that Yahoo!’s Terms of Use notice was not inadequate merely because it did not say that the texts would be sent by an autodialer.
Plaintiffs say neither of these provisions constituted express consent under the TCPA because neither specifically stated that notice would be given via an “automatic telephone dialing system.” Plaintiffs primarily rely on Thrasher-Lyon v. CCS Commercial, LLC, which interpreted the TCPA to require just that. See 2012 WL 3835089, *5 (N.D. Ill. Sept. 4, 2012). This interpretation, however, represents the minority view. Many more courts have held that, in order for “prior express consent” to exist, a person need not consent to be contacted via an “autodialer” or the like. See Ebling v. ClearSpring Loan Services, Inc., ___ F.Supp.3d ____, 2015 WL 3439161, *2 (D. Minn. April 14, 2015) (collecting cases). The majority view generally relies on Federal Communications Commission declaratory rulings holding that a person can give express consent simply by providing her cell phone number to another. See 2008 FCC Declaratory Ruling, CG Docket No. 02–278, FCC 07–232, 23 F.C.C.R. 559 (Jan. 4, 2008); 1992 FCC Report and Order, CC Docket No. 92–90, FCC 92–44, 7 F.C.C.R. 8752 (Oct. 16, 1992). Since the act of giving one’s number does not also include communicating permissible or impermissible modes of communication with the giver—yet such an act still constitutes prior express consent—it stands to reason that the TCPA does not require a consenter to specify that an automatic telephone dialing system may be used. I agree with this majority interpretation.. . Because Calderin agreed to the uTOS, defendant did not violate the TCPA when it sent her the Welcome Message. As such, her claim is not typical of the three proposed classes, and I am not assured that she would adequately represent their interests. The requirements of Rule 23(a) cannot be met with Calderin serving as a representative.
However, the Plaintiff was an adequate class representative to the extent that Yahoo! could not provide intermediary consent under the GroupMe Petition that the PayDay lender received vis-a-vis the PayDay lender to send the subsequent text.
Intermediary consent under the TCPA is articulated in the FCC’s decision, In the Matter of GroupMe, in which the FCC said a text-based social network could obtain consent to send administrative text messages to consumers by having a third-party organizer obtain the consumer’s consent on the network’s behalf. See 29 F.C.C.R. 3442 ¶ 1 (F.C.C. 2014). Crucial to this ruling, however, was the fact that the third party conveyed the individual recipient’s consent to the network. See id. ¶ 3 (group creator represented to GroupMe that each individual consented to receiving text messages). The FCC’s rule on intermediary consent has two necessary parts: (1) consent given by the recipient to the intermediary, and (2) consent conveyed by the intermediary to the sender. See, e.g., id. ¶ 9 (“Thus, we see nothing in the record or our present complaints that warrants requiring GroupMe to get consent directly from each called party, rather than indirectly through the group organizer, who conveys each party’s consent, in order to meaningfully ensure the protections of the TCPA are extended to the recipients of these GroupMe messages.”) Here, defendant has put forth no evidence to suggest that—during the time in question—any third party conveyed any recipient’s consent to defendant. With no such proof, there is no basis to conclude that Johnson or any other recipient gave effective consent through an intermediary.
Finally, Judge Shaw found that the class action device was the superior device to adjudicate the mass action, even though the Plaintiff could represent only 1-month of customers within the 4-year statute of limitations.
Defendant offers several arguments in response. First, it says this proposed class is not superior because, being for only one month out of the permissible four-year statute-of-limitations period, it amounts to piecemeal litigation and not a “true class action.” Defendant notes that it would face potentially dozens of class actions for each month and each phone carrier. Plaintiffs reply that they have no obligation to bring the broadest class action possible. See Mace v. Van Ru Credit Corp., 109 F.3d 338, 341 (7th Cir. 1997) (“we know of no authority requiring the participation of the broadest possible class. On the contrary, the class requirements found in the Federal Rules of Civil Procedure encourage rather specific and limited classes.”). As plaintiffs see it, obtaining a remedy for one month’s worth of class members is superior to obtaining it for no months’ worth. I agree. Second, defendant says Congress contemplated that TCPA claims could be brought as small-claims court actions. However, “Congress did not make a clear expression of an intent to preclude application of Fed. R. Civ. P. 23 to the TCPA, and the Court will not read one into the statute.” Green v. Service Master on Location Services Corp., 2009 WL 1810769, *3 (N.D. Ill. June 22, 2009); see also Murray v. GMAC Mortgage Corp., 434 F.3d 948, 953 (7th Cir. 2006). Third, defendant offers an expert report for the proposition that the PC2SMS service offers tremendous benefit to many categories of consumers, and as a result, many would not want to participate in this class action. Defendant fails to cite any authority, however, suggesting that this is a proper reason to find that the class action device is not otherwise superior. Fourth, defendant says a class action is not superior because of the financial impact it would have on Yahoo! and the disproportionality of a damage award that has little relation to the harm actually suffered by the class. Certifying a class action, however, does not necessarily mean defendant will be found liable. And complaints of disproportionality are better taken up with Congress. Cf. Murray, 434 F.3d at 953 (“The reason that damages can be substantial, however, does not lie in an ‘abuse’ of Rule 23; it lies in the legislative decision to authorize awards as high as $1,000 per person….”). Finally, for the same reasons defendant originally said no class was ascertainable, it says the class action device is not superior.