United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
S. Shah United States District Judge
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.
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.”).
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).
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. 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 y.ahoo.it/imsms.” The parties refer to this
stock message as the “Welcome Message.”
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. §
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.
 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. . 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.
discovery closed on June 26, 2015. . 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. .
Defendant now moves to decertify the class.
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