On January 22, 2016, Yahoo!, Inc. (“Yahoo”) once again moved for summary judgment in the Telephone Consumer Protection Act (“TCPA”) class action case entitled Dominguez v. Yahoo!, Inc., currently pending in the United States District Court for the Eastern District of Pennsylvania. Yahoo makes its motion following an earlier decision by the United States Court of Appeals for the Third Circuit which overturned the District Court’s order that granted summary judgment to Yahoo and dismissed the action. Determining what qualifies as an “autodialer” under the TCPA, the Third Circuit held that “so long as the equipment is part of a ‘system’ that has the latent ‘capacity’ to place autodialed calls, the statutory definition is satisfied.” The Third Circuit remanded the case for further consideration of Yahoo’s summary judgment motion in light of its ruling. Yahoo has now renewed its summary judgment motion, arguing that its equipment has neither the present nor “latent” capacity to generate telephone numbers randomly or sequentially.

Does Yahoo Use an Autodialer under the TCPA?

Yahoo Moves for Summary Judgment Over Definition of Autodialer

After remand, the plaintiff filed an amended complaint. As part of its amended complaint, the plaintiff suggested that Yahoo’s system is an autodialer because, among other things, Microsoft’s Excel spreadsheet program could be “incorporated” into Yahoo’s system, making it an autodialer.

Yahoo answered the amended complaint, and shortly thereafter renewed its motion for summary judgment. Yahoo argues that its system does not have the “present capacity” to generate random or sequential numbers because its system, which requires users to input a cellular telephone number to receive text message alerts about recently received Yahoo emails, was not designed to function that way. Nor, Yahoo argues, does its system have the “latent ability” to generate random or sequential numbers. Yahoo expressly refutes the plaintiff’s suggestion that its system can incorporate Microsoft Excel or any other program that would allow the system to generate random or sequential numbers. As Yahoo argues, “there would have been no reason to [generate random or sequential numbers] because the sole purpose of the Email SMS Service was to forward emails received by a Yahoo user to his or her mobile device if, and only if, the Yahoo user (1) manually elected to use the Email SMS Service, and (2) manually entered and verified a single, specific telephone number to receive such text message alerts.”

The plaintiff has 30 days to respond.

Protect Yourself

We have previously blogged about the Third Circuit’s autodialer definition in this case. Yahoo now takes a second bite at the summary judgment apple and hopes to be as successful as it was the first time before the District Court.