United States District Court, N.D. Illinois, Eastern Division
For Rachel Johnson, Plaintiff (1:14-cv-02028): Keith James Keogh, Timothy J. Sostrin, LEAD ATTORNEYS, Katherine Marie Bowen, Michael S. Hilicki, Keogh Law, LTD, Chicago, IL.
For Yahoo! Inc., Defendant (1:14-cv-02028): Francis A Citera, LEAD ATTORNEY, Lucia Lynn Marker-Moore, Greenberg Traurig, Llp, Chicago, IL; Ian Charles Ballon, Justin Alexander Barton, Lori Chang, PRO HAC VICE, Greenberg Traurig Llp, Los Angeles, CA.
For Zenaida Calderin, Plaintiff (1:14-cv-02753): Vincent Louis DiTommaso, LEAD ATTORNEY, Andrew Charles Murphy, John Auchter, John Robert McInerney, Patrick Doyle Austermuehle, Peter Scott Lubin, DiTommaso Lubin, P.C., Oakbrook Terrace, IL; Alexander I. Arezina, Chicago, IL.
For Yahoo!, Inc., Defendant (1:14-cv-02753): Francis A Citera, LEAD ATTORNEY, Lucia Lynn Marker-Moore, Greenberg Traurig, Llp, Chicago, IL; Justin Alexander Barton, PRO HAC VICE, Greenberg Traurig, Llp, Los Angeles, CA.
MEMORANDUM OPINION AND ORDER
Manish S. Shah, United States District Judge.
Plaintiffs are cell phone subscribers who each received at least two text messages from defendant Yahoo!. The first: personalized text messages originally sent to plaintiffs by some acquaintance. The second: Yahoo!'s explanation for why plaintiffs received the first. While plaintiffs take no issue with the former, they contend Yahoo!'s sending of the latter violated the Telephone Consumer Protection Act.
Plaintiffs' claims can survive only if Yahoo! sent the second messages using an " automatic telephone dialing system." Yahoo! has moved for summary judgment contending the undisputed record shows that it did not. However, because there remain genuine issues of fact, the motion is denied.
I. Legal Standard
Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014). A genuine dispute as to any material fact exists if " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether a genuine issue of material fact exists, the court must construe all facts and reasonable inferences in the light most favorable to the nonmoving party. See CTL ex rel. Trebatoski v. Ashland School District, 743 F.3d 524, 528 (7th Cir. 2014).
Defendant Yahoo! is widely known for its free online consumer services.  ¶ 5. One such service is an instant messaging client called Yahoo! Messenger, which allows registered users to send online messages to others. Id. ¶ 6. Of primary importance to this case, Yahoo! Messenger also allows users to send personalized messages to people's cell phones through a feature called Mobile SMS Messenger Service, or PC2SMS. Id. ¶ 8. PC2SMS bridges the gap between the online and SMS worlds by converting the Yahoo! user's online instant message into a text message that is sent to a recipient's cell phone. Id. ¶ 9.
PC2SMS interacts, either directly or indirectly, with three relevant databases. The first is the MO/MT database, which keeps track of all the cell phone numbers that PC2SMS has ever texted.  ¶ 18. Whenever PC2SMS texts a cell phone for the first time, it adds the number to the database.  ¶ ¶ 31, 33;  ¶ 18. For that reason, if a number isn't in MO/MT, it means PC2SMS has never texted it.  ¶ 32. MO/MT also records whether a cell phone has opted out of PC2SMS.  ¶ 19. If it has, Yahoo! won't text that cell phone even if a user asks it to. Id. ¶ 22. If the phone hasn't opted out--either because it opted into PC2SMS or because its prior decision to opt out has automatically expired--Yahoo! will send text messages to the phone as soon as a user asks. Id. ¶ ¶ 22-26.
The second database PC2SMS interacts with is the Address Book.  ¶ 15. This database stores the information contained in a Yahoo! user's contacts list, including the user's contacts' cell phone numbers, if any. Id. An Address Book service pulls information from the Address Book database and provides it to ...