Kyla Asbury Feb. 5, 2014, 4:06pm

SAN DIEGO (Legal Newsline) - Yahoo! Inc.'s motion for summary judgment has been denied in a class action lawsuit filed against the company for alleged violations of the Telephone Consumer Protection Act.

The defendant's motion for summary judgment was based on three arguments:

-Rafael Davis Sherman's claim must fail as a matter of law because the TCPA was not intended to reach a single confirmatory text message;

-The case does not involve use of an automatic telephone dialing system, as defined by the TCPA; and

-Yahoo! is immune from liability under the Good Samaritan exemption in the Telecommunications Act.

The judge's order was filed Feb. 3 in the U.S. District Court for the Southern District of California at San Diego.

"Unlike the plaintiff in [Ibey v. Taco Bell Corp.] Plaintiff Sherman did not send a voluntary message to Yahoo! prior to receipt of the unsolicited text message. Plaintiff did not provide Yahoo! prior express consent or take any action which would have justified a response or confirmation by Yahoo! Based on these facts, the court concludes plaintiff did not offer his prior express consent to Yahoo! to be contacted..." the order states.

Using the principles under the TCPA, the court concludes that, absent prior express consent, a single call or text with use of an ATDS may be actionable under the TCPA, according to the order.

Rafael Davis Sherman claimed Yahoo! negligently and/or intentionally contacted him on his cell phone, which is in violation of the TCPA, according to a complaint filed Jan. 8, 2013.

Sherman claimed Yahoo! invaded his privacy and the TCPA was designed to prevent calls like the ones he endured and to protect his privacy.

Yahoo! offers its users an instant message service that provides users the opportunity to send free text messages and at no time did Sherman provide his cell phone number to Yahoo! through any medium, according to the suit.

Sherman claimed on Jan. 7, 2013, at approximately 11:07 a.m., a Yahoo! user utilized Yahoo!'s service to send a text message to his cell phone and prior to the message being received, Yahoo! sent an unsolicited spam text message to him.

The plaintiff was unaware that Yahoo!'s instant messaging service would send him the unsolicited spam text message and, upon information and believe, the sender of the first message was unaware that Yahoo! would send the spam text, according to the suit.

Sherman claimed the class includes "all persons within the United States who received a text message substantially similar or identical to the text message....from defendant without prior express consent..."

Sherman is seeking $500 for himself and each class member in statutory damages for negligent violations of the TCPA and $1,500 for himself and each class member in statutory damages for known and/or willful violations of the TCPA. He is being represented by Abbas Kazerounian of the Kazerouni Law Group.

The case has been assigned to District Judge Gonzalo P. Curiel.

Yahoo! was hit with a lawsuit in late 2013 regarding scanning email messages in order to serve users with relevant advertising. In 2012, Yahoo! was hit with a similar suit that alleged it intercepted, read and recorded e-mails sent to its subscribers.

U.S. District Court for the Southern District of California at San Diego case number: 3:13-cv-00041

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