Yahoo Opposes Consumer's Bid To Revive Lawsuit Over SMS Messages

Yahoo didn't run afoul of an anti-spam law by allegedly sending thousands of SMS messages to the wrong person, the company argues in new court papers.

The company says in new appellate papers that it didn't violate the Telephone Consumer Protection Act, which prohibits companies from using automated dialers to send SMS messages without the recipients' consent.

Yahoo says its SMS system, which converted emails to text messages and sent them to users' phones, didn't rely on automated dialers. “Messages sent through the Email SMS Service were not sent randomly, in bulk or to sequential numbers -- only to specific phone numbers manually inputted by individual Yahoo users,” Yahoo argues in a brief filed last week with the 3rd Circuit Court of Appeals.

The company is asking the court to uphold U.S. District Court Judge Michael Baylson's decision dismissing the lawsuit, which was filed last year by Philadelphia resident Bill Dominguez.



Dominguez, who is asking the appeals court to revive his lawsuit, alleged that Yahoo daily sent him dozens of unwanted SMS messages after he purchased a used smartphone from T-Mobile. He said in his complaint that he believed the phone's previous owner arranged to receive SMS alerts from Yahoo whenever he received emails.

Dominguez -- who doesn't have a Yahoo email address -- says that he received almost 5,000 SMS messages from Yahoo in the five months preceding his lawsuit.

Dominguez said he complained to Yahoo, but was informed that only the phone's former owner could arrange to stop the texts. He asserted in the complaint that at one point he threatened to resort to litigation. The Yahoo supervisor Dominguez was speaking with allegedly replied: “So sue me.”

Yahoo suggests in its most recent papers that Dominguez should have asked T-Mobile to give him a new phone number. “Rather than simply asking his carrier to assign him a new number, Dominguez filed a complaint seeking to recover ... statutory damages against Yahoo for allegedly violating the TCPA,” Yahoo says.

Even though Bayson agreed with Yahoo's argument that its system didn't meet the definition of an automated dialer, a different trial judge presiding over a separate lawsuit ruled that Yahoo's SMS-sending system was an automated dialer.

California resident Rafael David Sherman alleged in that matter that Yahoo told him via SMS that he had received an instant message from someone else. Sherman said in his complaint that he never gave Yahoo his cell phone number or consented to receive SMS messages from the company.

U.S. District Court Judge Gonzalo Curiel in the Southern District of California denied Yahoo's request for summary judgment in that lawsuit. Curiel specifically rejected Yahoo's argument that it didn't use an automated dialer system to send Sherman a message. Earlier this month, Curiel denied Yahoo's request to reconsider his ruling.

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