PHILADELPHIA – Per an order from a Philadelphia federal court, proceedings revolving around a renewed motion for summary judgment in a putative class action lawsuit against Yahoo, Inc. and its now-discontinued text message email alert service will move forward on a new timetable.
After a June 3 hearing, Judge Michael M. Baylson of the U.S. District Court for the Eastern District of Pennsylvania ruled a response from plaintiff Bill H. Dominguez on Yahoo’s renewed motion for summary judgment would be due by Oct. 11, with a reply from Yahoo due no later than Nov. 1.
Baylson further ruled affirmative expert reports necessary to support or oppose the motion, if any, shall be produced and served no later than July 15; that a date for a post-report expert’s deposition will be agreed upon by the parties on or before July 25; and any rebuttal expert report(s) shall be produced and served no later than Sept. 9.
Additionally, Baylson denied both Dominguez’s prior motion seeking to compel discovery from Yahoo related to the renewed motion for summary judgment, as well as Yahoo’s prior motion to permit written expert discovery, as moot. Baylson further noted the order was designated without prejudice, to the rights of either party to move for summary judgment at a later stage in this case.
Dominguez claims he received 27,809 texts from Yahoo after purchasing a cell phone that used the number of its previous owner, who had signed up for a text alert every time an email was received.
Before filing this suit, Dominguez claims he contacted Yahoo to be taken off the text message alert, but was told because he was not the account holder of the email address registered to the phone, he couldn’t authorize a removal.
The text message alert service was discontinued in October 2013.
Dominguez filed his class action lawsuit under the TCPA, but it was dismissed after the district court found his definition of an auto-dialer – the device used to send him the text messages from Yahoo – wasn’t the same as the definition the TCPA used for an auto-dialer.
A July 2015 order updated the TCPA’s 1992 definition of an auto-dialer, which was as U.S. Court of Appeals for the Third Circuit Judge Thomas Ambro said, “A reflection of the times.” If the system had a “latent or potential capacity” to place auto-dialed calls, according to the order, the statutory definition would be satisfied.
Yahoo previously filed a motion for summary judgment in January, claiming their email SMS Service “has no latent or potential capacity to generate telephone numbers randomly or sequentially”, and was therefore entitled to summary judgment.
The plaintiff is represented by David A. Searles, Geoffrey H. Baskerville, John Soumilas, Mark D. Mailman, Lauren K.W. Brennan and James A. Francis of Francis & Mailman, in Philadelphia.
The defendant is represented by Brian T. Feeney, Lori Chang, Wendy Mantell and Ian C. Ballon of Greenberg Traurig, in both Philadelphia and Los Angeles.
U.S. District Court for the Eastern District of Pennsylvania case 2:13-cv-01887
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com