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Johnson v. Yahoo! Inc.

United States District Court, N.D. Illinois, Eastern Division

February 13, 2018

Rachel Johnson, Plaintiff,
Yahoo! Inc., Defendant.


          Manish S. Shah United States District Judge

         Plaintiff Rachel Johnson received a text message written by a non-party via a service provided by defendant Yahoo! Inc. A second text message soon followed, containing defendant's explanation of why plaintiff received the first. Plaintiff, pursuing a claim that the second text violated the Telephone Consumer Protection Act, represents a class of certain individuals who received similar text messages from defendant. Defendant moves to decertify the class, arguing that the class is unmanageable in light of information recently provided by a cellular telephone service provider. For the following reasons, the motion is granted.

         I. Legal Standards

         Under Federal Rule of Civil Procedure 23(c)(1)(C), “[a]n order that grants or denies class certification may be altered or amended before final judgment.” “If the certification of the class is later deemed to be improvident, the court may decertify.” Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, U. A., 657 F.2d 890, 896 (7th Cir. 1981); see also Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982) (“Even after a certification order is entered, the judge remains free to modify it in the light of subsequent developments in the litigation.”).

         The class must meet the four requirements of Rule 23(a)-numerosity, typicality, commonality, and adequacy of representation-and at least one of the three alternatives provided in Rule 23(b). Costello v. BeavEx, Inc., 810 F.3d 1045, 1059 (7th Cir. 2016). Under Rule 23(b)(3), certification is proper when questions of law or fact common to the members of the proposed class predominate over questions affecting only individual class members, and a class action is superior to other methods of resolving the controversy. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012).

         II. Background

         As explained in earlier orders, defendant Yahoo! Inc. provided an instant messaging client called Yahoo! Messenger, which allowed registered users to send online messages to others. Yahoo! Messenger also allowed users to send personalized messages to people's cellular telephones through a feature called PC2SMS. PC2SMS converted Yahoo! users' instant messages into text messages, which were sent to recipients' cellular telephone numbers.[1] The first time a given cellular telephone number received a text message from the PC2SMS system, the number was sent an additional text message stating: “A Yahoo! user has sent you a message. Reply to that SMS to respond. Reply INFO to this SMS for help or go to” The parties refer to this stock message as the “Welcome Message.”

         On March 19, 2013, plaintiff Rachel Johnson received a text message from an unknown sender via PC2SMS, and she received the Welcome Message soon after. According to plaintiff, the transmission of the Welcome Message was a violation of the Telephone Consumer Protection Act, which makes it unlawful “to make any call (other than a call made . . . with the prior express consent of the called party) using any automatic telephone dialing system . . . to any cellular telephone service . . . .” 47 U.S.C. § 227(b)(1)(A)(iii).

         Plaintiff moved for class certification under Rules 23(a) and 23(b)(3), and on January 4, 2016, I certified the following class:

All persons within the United States to whose cellular telephone number Yahoo! sent the Welcome Message during the period commencing March 1, 2013 through March 31, 2013, while such cellular number was assigned to Sprint, and whose cellular telephone number is not associated with a Yahoo! user in Yahoo!'s records.

[177] at 21; Johnson v. Yahoo!, Inc., No. 14 CV 2028, 2016 WL 25711, at *9 (N.D. Ill. Jan. 4, 2016). That definition was later clarified to specify that membership in the class was limited to the users-not the subscribers-of the cellular telephone numbers. [209]. The clarification aligned with plaintiff's approach to class certification, and plaintiff's own status as the user, but not subscriber, of a cellular telephone number.

         Fact discovery closed on June 26, 2015. [94]. In August 2016, in response to a subpoena, Sprint produced previously undisclosed information related to the identities of the users and subscribers of the cellular telephone numbers assigned to Sprint and that received the Welcome Message. The parties deposed Sprint's corporate representative the following month. Defendant then sought to reopen discovery to develop additional evidence to support its affirmative defense of prior express consent. That request was denied because defendant had sufficient opportunity to pursue that evidence during the discovery phase of the case. [277]. Defendant now moves to decertify the class.

         III. Analysis

         Defendant argues that the class should be decertified due to manageability concerns. As noted above, Rule 23(b)(3) requires a showing that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” According to defendant, individualized issues related to prior express consent overwhelm any class-wide common questions of law or fact. Defendant picks up on a warning in my opinion certifying the class: “If plaintiff and her counsel ...

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