Johnson v. Yahoo! Inc.

Filing 1

COMPLAINT filed by Rachel Johnson; Jury Demand. Filing fee $ 400, receipt number 0752-9317656.(Keogh, Keith)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
____________________________________________________________________________
RACHEL JOHNSON, on behalf of
)
herself and all others similarly situated
)
)
Plaintiff
)
)
v.
)
)
YAHOO! INC.
)
)
Defendant.
)
JURY DEMAND
____________________________________________________________________________
COMPLAINT - CLASS ACTION
INTRODUCTION
1.

This action for damages and other legal and equitable remedies results from

the illegal actions of Yahoo!, Inc. (hereinafter referred to as “Yahoo” or “Defendant”) in using an
automatic telephone dialing system to send unsolicited text messages to Plaintiff’s cellular
telephone in direct contravention to the Telephone Consumer Protection Act, 47 U.S.C. § 227 et
seq. (hereinafter referred to as the “TCPA”).
2.

“Consumer complaints about abuses of telephone technology - for example,

computerized calls to private homes - prompted Congress to pass the Telephone Consumer
Protection Act of 1991, 47 U.S.C. § 227 et seq. Congress determined that federal legislation was
needed because telemarketers, by operating interstate, were escaping state-law prohibitions on
intrusive nuisance calls.” Mims v. Arrow Financial Services, LLC, 132 S. Ct. 740 (2012)(internal
citations omitted). In an effort to enforce this fundamental federal right to privacy, Plaintiff files
the instant class action complaint alleging violations of the TCPA.
3.

Defendant has caused plaintiff and the putative class actual harm, not only

because they were subjected to the aggravation that necessarily accompanies these messages, but
also because plaintiff and the putative class have to pay their cell phone service providers for the

use of their cellular telephones and such calls are an intrusion upon seclusion, diminish cellular
battery life, and waste data storage capacity.
JURISDICTION AND VENUE
4.

This Court has jurisdiction under 28 U.S.C. § 1331 (general federal

question), § 1337, 47 U.S.C. § 227 (TCPA). Venue in this District is proper because Plaintiff
resides here and Defendant transacts business here.
PARTIES
5.

Plaintiff Rachel Johnson (“Johnson”) is, and at all times mentioned herein

was, an individual citizen of the State of Illinois, who resides in the district.
6.

At all times relevant, Johnson was an individual residing in the State of

Illinois. Johnson is, and at all times mentioned herein was, a “person” as defined by 47 U.S.C. §
153(10).
7.

Defendant Yahoo is, and at all times mentioned herein was, a corporation

and a “person” as defined by 47 U.S.C. § 153(10).
8.

Yahoo is a Delaware corporation that maintains its headquarters in

Sunnyvale, California.

Yahoo maintains a registered Agent in the state of Illinois, CT

Corporation System.
9.

Yahoo is an internet company that, among other things, provides email and

instant messaging services for Yahoo members.
THE TELEPHONE CONSUMER PROTECTION
ACT OF 1991 (TCPA), 47 U.S.C. § 227
10.

As noted above, in 1991, Congress enacted the Telephone Consumer

Protection Act, 47 U.S.C. § 227 (TCPA), in response to a growing number of consumer
complaints regarding certain telemarketing practices.
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11.

The TCPA regulates, among other things, the use of prerecorded messages

and use of automated telephone equipment, or “autodialers.” Specifically, the plain language of
section 227(b)(1)(A)(iii) prohibits the use of prerecorded messages or autodialers to make any call
to a wireless number in the absence of an emergency or the prior express consent of the called
party.
12.

According to findings by the Federal Communication Commission

(“FCC”), the agency Congress vested with authority to issue regulations implementing the TCPA,
such calls are prohibited because, as Congress found, automated or prerecorded telephone calls are
a greater nuisance and invasion of privacy than live solicitation calls, and such calls can be costly
and inconvenient. The FCC also recognized that wireless customers are charged for incoming calls
whether they pay in advance or after the minutes are used.
13.

Unlike more conventional advertisements, such text messages actually

costs their recipients money because cell phone users must pay their wireless service providers
either for each text message call they receive or in advance for an allocated allowance of text
messages, regardless of whether or not the message is authorized.
FACTUAL BACKGROUND
14.

One of Yahoo’s services is Yahoo! Messenger, an instant messaging

15.

According to Yahoo’s website, one of the features of Messenger allows

program.

users to send SMS Text messages to cellular telephones using Yahoo! Messenger.
http://messenger.yahoo.com/features. February 5, 2014.
16.

"Short Message Service" or "SMS" is a messaging system that allows

cellular telephone subscribers to use their cellular telephones to send and receive short text

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messages, usually limited to 160 characters.
17.

An "SMS message" is a text message call directed to a wireless device

through the use of the telephone number assigned to the device. When an SMS or "text" message
call is successfully made, the recipient's cell phone rings or otherwise notes the receipt of the text
message, alerting him or her that a call is being received. As cellular telephones are inherently
mobile and are frequently carried on their owner's person, calls to cellular telephones, including
SMS messages, may be received by the called party virtually anywhere worldwide.
18.

When a Yahoo user sends a SMS Text Message using Yahoo! Messenger,

Yahoo sends the intended recipient a text message notifying said person that a Yahoo user has sent
an SMS Text Message using Yahoo! Messenger. This text message from Yahoo is in addition to
the actual message which the Yahoo! Messenger user intended to send.
19.

On March 19, 2013, Plaintiff received a text message from Yahoo notifying

her that a Yahoo! Messenger user had sent her a separate message and advertising Yahoo’s
website.
20.

Yahoo’s text message notification is an advertisement for services offered

through Yahoo! Messenger.
21.

Plaintiff did not provide consent for Yahoo to send text messages to her

cellular telephone using an automatic telephone dialing system.
22.

On information and belief, Yahoo sent nearly identical text messages to

hundreds if not thousands of persons without their prior express consent while using an automatic
telephone dialing system.
CLASS ALLEGATIONS
23.

Plaintiff defines the class, subject to amendment, as follows:

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(1) All persons in the United States (2) to whose cellular telephone number (3)
Yahoo sent a non-emergency text message (4) using an automatic telephone dialing
system (5) within 4 years of the complaint (6) without prior express consent.
24.

Plaintiff seeks to represent and is a member of the proposed Class.

Excluded from the Class are Defendant and any entities in which Defendant has a controlling
interest, Defendant’s agents and employees, the Judge to whom this action is assigned and any
member of the Judge’s staff and immediate family, and claims for personal injury, wrongful death
and/or emotional distress.
25.

Plaintiff does not know the exact number of members in the Class, but

based upon the nature of the message to plaintiff, plaintiff reasonably believes that class
members number at minimum in the hundreds if not thousands.
26.

Plaintiff and all members of the class have been harmed by the acts of

27.

This Class Action Complaint seeks money damages and injunctive relief.

28.

The joinder of all class members is impracticable due to the size and

defendant.

relatively modest value of each individual claim. The disposition of the claims in a class action
will provide substantial benefit the parties and the Court in avoiding a multiplicity of identical
suits. The class can be identified easily through records maintained by Yahoo.
29.

There are questions of law and fact common to the members of the class,

which common questions predominate over any questions that affect only individual class
members. Those common questions of law and fact include, but are not limited to, the following:
a.

Whether Yahoo engaged in a pattern of sending text messages to
cellular telephone numbers without express consent to send such
messages;

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b.
c.
30.

Whether Yahoo used an automatic telephone dialing system
Whether Yahoo thereby violated the TCPA;

As a person who received text messages from Yahoo, without her prior

express consent within the meaning of the TCPA, plaintiff asserts claims that are typical of the
members of the class. Plaintiff will fairly and adequately represent and protect the interests of
the class, and have no interests which are antagonistic to any member of the class.
31.

Plaintiff has retained counsel experienced in handling class action claims

involving violations of federal and state consumer protection statutes such as the TCPA.
32.

A class action is the superior method for the fair and efficient adjudication

of this controversy. Class wide relief is essential to compel defendant to comply with the
TCPA. The interest of class members in individually controlling the prosecution of separate
claims against Defendant is small because the statutory damages in an individual action for
violation of the TCPA are small. Management of these claims is likely to present significantly
fewer difficulties than are presented in many class claims because the calls at issue are all
automated and the class members, by definition, did not provide the prior express consent
required under the statute to authorize calls to their cellular telephones.
33.

Defendant has acted on grounds generally applicable to the class, thereby

making final injunctive relief and corresponding declaratory relief with respect to the class as a
whole appropriate. Moreover, Plaintiff alleges that the TCPA violations complained of herein
are substantially likely to continue in the future if an injunction is not entered.
COUNT I - TCPA (TEXT MESSAGES)
34.

Plaintiff incorporates the above factual allegations herein.

35.

Yahoo made unsolicited telephone calls to the wireless telephone number of

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plaintiff and the other members of the class with text messages using an automatic telephone
dialing system.
36.

These text messages were sent without the prior express consent of plaintiff

37.

Yahoo has therefore violated the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii),

or the class.

which makes it “unlawful for any person within the United States . . . to make any call (other than
a call made for emergency purposes or made with the prior express consent of the called party)
using any automatic telephone dialing system or an artificial or prerecorded voice . . .” As a result
of defendant’s illegal conduct, the members of the class suffered actual damages and, under
section 227(b)(3)(B), are each entitled to, inter alia, a minimum of $500.00 in damages for each
such violation of the TCPA.
38.

Plaintiff and class members are also entitled to and do seek injunctive relief

prohibiting defendant’s violation of the TCPA in the future.
WHEREFORE, plaintiff requests that the Court enter judgment in favor of
plaintiff, the class and sub-class and against defendant for:
A.
B.

Statutory damages pursuant to 47 U.S.C. § 227(b)(1);
Injunctive relief prohibiting such violations of the TCPA by Defendant in the
future;

C.

An award of attorneys’ fees and costs to counsel for Plaintiff and the Class;

D.

Such other relief as the Court deems just and proper.
Respectfully submitted,
Rachel Johnson, Plaintiff
/s/ Keith J. Keogh
Attorney for Plaintiff

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Keith J. Keogh
Timothy Sostrin
Katherine Bowen
Keogh Law, Ltd.
55 W. Monroe St., Suite 3390
Chicago, Illinois
60603
312.726.1092 (office)
312.726.1093 (fax)
[e-mail]

JURY DEMAND
Plaintiff demands trial by jury.
/s/ Keith J. Keogh

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