Yahoo wins TCPA case after plaintiff's expert reports 'offer nothing'; Attorneys sought recovery for 27K texts

By Nicholas Malfitano | Jul 16, 2018

Yahoo, Inc.  

PHILADELPHIA – In a long-litigated Telephone Consumer Protection Act (TCPA) case filed, Yahoo has had its verdict of summary judgment upheld by a federal appellate court for a second time, and had the plaintiff’s expert reports excluded.

In a ruling reached June 26, U.S. Court of Appeals for the Third Circuit judges Patty Shwartz and Jane R. Roth, plus U.S. District Court for the Eastern District Court of Pennsylvania Judge Gerald J. Pappert (appointed by designation) affirmed a second dismissal ruling in the instant case from the District Court, against plaintiff Bill Dominguez and in favor of defendant Yahoo, Inc.

Dominguez claimed he received 27,809 texts from Yahoo in a 17-month period 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 suit, Dominguez claimed 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, claiming their email SMS Service “has no latent or potential capacity to generate telephone numbers randomly or sequentially," and was therefore entitled to receive that same summary judgment.

It was a verdict Yahoo would win in the District Court on two separate occasions, both of which Dominguez appealed. That led to the case returning to the U.S. Court of Appeals for the Third Circuit for a second time.

But the appellate court was not swayed, saying Dominguez’s submitted expert reports “offer nothing” to help resolve the present capacity question of the email SMS system as an auto-dialer.

“It does not follow that the reports create a triable factual issue regarding the present capacity of the email SMS Service. The reports are founded upon…hypothesizing, [and] they are irrelevant to the present capacity inquiry,” Roth said.

In the end, the federal appellate court believed all of Dominguez’s submitted expert reports failed to live up to the standard for admissibility established under Daubert.

“Ultimately, Dominguez cannot point to any evidence that creates a genuine dispute of fact as to whether the email SMS Service had the present capacity to function as an auto-dialer by generating random or sequential telephone numbers and dialing those numbers. On the contrary, the record indicates that the email SMS Service sent messages only to numbers that had been individually and manually inputted into its system by a user,” Roth said.

“There can be little doubt that Dominguez suffered great annoyance as a result of the unwanted text messages. But those messages were sent precisely because the prior owner of Dominguez’s telephone number had affirmatively opted to receive them, not because of random number generation. The TCPA’s prohibition on auto-dialers is therefore not the proper means of redress.”

When given an opportunity to file a petition for a rehearing within two weeks, court records show Dominguez filed a petition to that effect on July 6 and it was granted on July 11.

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, plus Gerald E. Arth, Abraham C. Reich and Robert S. Tintner of Fox Rothschild, all in Philadelphia.

The defendant is represented by Brian T. Feeney, Lori Chang and Ian C. Ballon of Greenberg Traurig, in both Philadelphia and Los Angeles.

U.S. Court of Appeals for the Third Circuit case 17-1243

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

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