On January 4, 2016, Judge Manish Shah of the U.S. District Court of the Northern District of Illinois simultaneously approved a class of Sprint wireless customers who received a “Welcome Message” from Yahoo Inc., and denied a similar class of T-Mobile wireless customers receiving the same Welcome Message.  Both named Plaintiffs, argued that Yahoo violated the TCPA when it sent them the Welcome Message. 

In turn, Yahoo argued that the T-Mobile named Plaintiff (“T-Mobile Plaintiff”) failed to satisfy both the typicality and adequacy requirements under Rule 23(a)(3)-(4).  Yahoo chiefly relied on the fact that the T-Mobile Plaintiff consented to receiving the Welcome Message when she agreed to Yahoo’s Universal Terms of Service and Yahoo’s Communications Additional Terms of Service.  The Court rejected the T-Mobile Plaintiff’s argument that neither of these service provisions constituted express consent under the TCPA because neither specifically state that notice would be given via an automatic telephone dialing system (“ATDS”).  In rejecting this argument, Judge Shah correctly recognized that under the FCC’s declaratory rulings, “a person can give express consent simply by providing her cell phone number to another.”  (Opinion, p. 9) (citations omitted).  Moreover, Judge Shah determined that both sets of terms of service were broad enough to have “the effect of consenting to receive the Welcome Message at issue in this case.”  (Id. at p. 10).  Based on the T-Mobile Plaintiff’s agreement to Yahoo’s terms of service, the Court found that Yahoo did not violate the TCPA when it sent her the Welcome Message.  Accordingly, the T-Mobile Plaintiff’s claims were not typical of the proposed classes, and she would also be an inadequate representative of the class’s interests.  (Id.).

With respect to the Sprint named Plaintiff (“Sprint Plaintiff”), Yahoo sought to use the consent given by the Sprint Plaintiff to an intermediary (a personal loan website) as a basis for its TCPA defense.  The Court recognized that consent for TCPA purposes can be given via an intermediary, so long as the recipient’s consent to the intermediary entity is conveyed by that entity to the sender of the message.  (Id. at p. 11).  Fatal to Yahoo’s defense, however, was the fact that it proffered no evidence to establish the intermediary’s conveyance of the Sprint Plaintiff’s consent.  Alternatively, Yahoo argued that because the Sprint Plaintiff failed to retain her cell phone, Yahoo is unable to determine whether the Sprint Plaintiff may have downloaded one of defendant’s apps, which would have required her to assent to Yahoo’s terms of service.  In response, the Sprint Plaintiff countered that she owned a flip phone, never owned a smartphone, never sent a text message, and never downloaded any apps.  The Court deemed Yahoo’s alternate argument a “shot in the dark.”  (Id. at 12).  Accordingly, the Court found the Sprint Plaintiff to have satisfied all four prongs under Rule 23(a).

Perhaps most unique in this ruling is the fact that the Sprint Plaintiff was able to certify a class spanning only a one-month period out of the possible four-year statute of limitations.  Yahoo argued that certifying a class restricted to a one month period would amount to piecemeal litigation over the same claims, and that “it would face potentially dozens of class actions for each month and each phone carrier.”  (Id. at p. 19).  The Court, however, sided with the Sprint Plaintiff and the Seventh Circuit, noting that there is no obligation to seek the broadest class possible.  Significantly, Yahoo failed to point to any authority to rebut this concept.