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February 2014 Archives


On February 13, 2014, the Honorable John A. Houston approved a class action settlement obtained by the Kazerouni Law Group, APC in Hoffman, et al. v. Bank of America, N.A., 12-cv-539 JAH (DHB). [A copy of Judge Houston's Order may be found here]. InHoffman, the plaintiffs alleged that defendant Bank of America recorded California consumers without said consumers' knowledge and/or consent in violation of California Penal Code § 632. Following months of strenuous litigation, the Parties finally reached an amicable resolution. The Kazerouni Law Group, APC believes that this decision is of great benefit in protecting California consumers from further invasions of privacy.


In a major victory for California consumers, the Honorable Richard Seeborg of the United States District Court, Northern District of California affirmed U.S. Magistrate Judge Nathaneal M. Cousin's Order requiring Defendant Healthcare Revenue Recovery Group LLC to produce documents relating to plaintiff Webb's TCPA class action. See the full Order here. At issue were two categories of evidence: (1) the defendant's outbound dial list; and, (2) documents pertaining to defendant's "prior express consent" affirmative defense. Following argument by the Parties, Judge Seeborg ruled that Plaintiff was entitled to these documents since the documents will be at issue in Plaintiff's eventual Motion for Class Certification. As such, to withhold the requested documents would unfairly prejudice Plaintiff.


On February 3, 2014, the Honorable Gonzalo P. Curiel of the United States District Court, Southern District of California, denied defendant Yahoo!, Inc.'s Motion for Summary Judgment in the matter of Sherman v. Yahoo!, Inc., 13-cv-41 GPC (WVG). Read the full Order here. In Sherman, plaintiff Sherman alleges that Yahoo! violated the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. ("TCPA") by texting Sherman using an autodialer. In moving for Summary Judgment, Yahoo! argued that a single text message could not violate the TCPA. See Judge Curiel's Order, page 6, lines 15-16. After reviewing relevant case law, Judge Curiel quickly concluded that "absent prior express consent, a single call or text with the use of an ATDS may be actionable under the TCPA." Id. at pages 8-9, lines 28-1. Thereafter, Yahoo! argued that Yahoo!'s dialing equipment did not satisfy the TCPA's definition of an ATDS which is "equipment that has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." 47 U.S.C. § 227(a)(1). Here, Yahoo! claimed that the "Yahoo! server and system is not an ATDS because it does not have the capacity to store or produce telephone numbers to be called, using a random or sequential number, nor can it dial such numbers. Judge Curiel's Order, page 10, lines 10-13. Judge Curiel disregarded this argument based upon Ninth Circuit authority which held that "the focus of the inquiry in evaluating whether a technology is considered an ATDS is whether the equipment has the capacity to store and dial phone numbers." Id. at pages 11-12, lines 27-1. Moreover, Judge Curiel also rejected Yahoo!'s ATDS argument acknowledge that a "predictive dialer [like the one used by Yahoo!] is considered an ATDS under the TCPA." Id. at page 9, lines 23-24. Finally, Judge Curiel summarily rejected Yahoo!'s "Good Samaritan" argument made pursuant to the Communication Decency Act ("CDA"), 47 U.S.C. § 230, et seq. Judge Curiel found the the Good Samaritan Immunity claim unavailing since the CDA was enacted "'to control the exposure of minors to indecent material' material on the Internet." Id. at page 12, lines 19-21. Here, no such issues were present; thus, the CDA did not apply. Id. at pages 14-15, lines 19-2.
Based upon the discussion above, Judge Curiel denied Yahoo!'s Motion.

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