Antitrust Law Daily Wrap Up, PRIVACY—S.D. Cal.: Yahoo! may not amend answer to TCPA claims, (Jul 17, 2015)

By Greg Hammond, J.D.

Yahoo! Inc. may not file an amended answer to assert an Article III standing affirmative defense in a suit where the company allegedly violated the Telephone Consumer Protection Act (TCPA). The federal district court in San Diego denied the motion for leave, finding that there was no law that required the court to grant leave to amend an answer in anticipation of a change in law (Sherman v. Yahoo! Inc., July 15, 2015, Curiel, G.).

Susan Pathman filed a class action against Yahoo!, claiming the company violated the TCPA by sending her an allegedly unsolicited text message on her cellular telephone through its messenger service. Yahoo! moved for leave to file an amended answer, seeking to include the affirmative defense that Pathman lacks Article III standing to bring her claims against Yahoo! because her alleged injury is based on the violation of a statutory right, as opposed to an actual injury.

Yahoo! argued that amendment would not be futile because the Supreme Court has granted review in Robins v. Spokeo, 135 S.Ct. 1892 (April 27, 2015), and the affirmative defense of lack of Article III standing would apply if the Supreme Court were to overturn that case. The U.S. Court of Appeals in the Ninth Circuit held in Spokeo that alleged violations of statutory rights are sufficient to satisfy the injury-in-fact requirement needed to establish Article III standing.

Conversely, Pathman argued that the motion and proposed amendment should be denied as futile because Spokeo is still good law. The court agreed with Pathman, finding that Yahoo! provided no law to support its argument that the court was required to grant leave to amend in anticipation of a change in controlling precedent. Further, Yahoo! would suffer no prejudice in the future for denial of its amended answer because it may seek to assert the same defense later if the validity of Spokeo changes, as lack of Article III standing was a claim that cannot be waived.

The case number is 13cv0041-GPC-WVG.

Attorneys: Abbas Kazerounian (Kazerounian Law Group, APC) for Susan Pathman. Ian Charles Ballon (Greenberg Traurig LLP) for Yahoo! Inc.

Companies: YAHOO! Inc.

Cases: Privacy CaliforniaNews