FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YAHOO! INC., a Delaware 

corporation,

Plaintiff-Appellant,

v.

NATIONAL UNION FIRE 

INSURANCE COMPANY OF 

PITTSBURGH, PENNSYLVANIA, a 

Pennsylvania corporation,

Defendant-Appellee.

No. 17-16452

D.C. No.

5:17-cv-00447-NC

ORDER 

CERTIFYING 

QUESTION TO 

THE CALIFORNIA 

SUPREME COURT

Filed January 16, 2019

Before: MILAN D. SMITH, JR., and JACQUELINE H. 

NGUYEN, Circuit Judges, and JANE A. RESTANI,*

Judge.

Order

 * The Honorable Jane A. Restani, Judge for the United States Court 

of International Trade, sitting by designation.
2 YAHOO! V. NAT’L UNION FIRE INS. CO.

SUMMARY**

Insurance Law / Right of Privacy

The panel certified to the California Supreme Court the 

following question:

Does a commercial liability policy that 

covers “personal injury,” defined as “injury . 

. . arising out of . . . [o]ral or written 

publication . . . of material that violates a 

person’s right of privacy,” trigger the 

insurer’s duty to defend the insured against a 

claim that the insured violated the Telephone 

Consumer Protection Act by sending 

unsolicited text message advertisements that 

did not reveal any private information?

ORDER

We ask the California Supreme Court to resolve an 

important and unresolved question of state law. The right to 

privacy is generally understood to encompass both a right 

“to be free from unwanted intrusions,” known as the right to 

seclusion, as well as a right “to keep personal information 

confidential,” known as the right to secrecy. State Farm 

Gen. Ins. v. JT’s Frames, Inc., 104 Cal. Rptr. 3d 573, 585 

(Ct. App. 2010); see ACS Sys., Inc. v. St. Paul Fire & Marine 

Ins., 53 Cal. Rptr. 3d 786, 794–95 (Ct. App. 2007).

 ** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
YAHOO! V. NAT’L UNION FIRE INS. CO. 3

Many commercial general liability policies cover “injury

. . . arising out of . . . [o]ral or written publication . . . of 

material that violates a person’s right of privacy.” See

Penzer v. Transp. Ins., 545 F.3d 1303, 1311 (11th Cir. 2008) 

(discussing this “widely used language”). Courts 

nationwide are divided as to whether such a provision covers 

injury solely to the right to seclusion, such as where the 

insured’s unsolicited advertising message disturbs the 

recipient’s privacy but does not reveal a third party’s private 

information. Compare, e.g., Columbia Cas. Co. v. HIAR 

Holding, L.L.C., 411 S.W.3d 258, 269–70 (Mo. 2013) 

(finding coverage), Penzer v. Transp. Ins., 29 So. 3d 1000, 

1002 (Fla. 2010) (same), and Terra Nova Ins. v. FrayWitzer, 869 N.E.2d 565, 574 (Mass. 2007) (same), with, e.g., 

Auto-Owners Ins. v. Websolv Computing, Inc., 580 F.3d 543, 

550–51 (7th Cir. 2009) (finding no coverage under Iowa 

law), and Res. Bankshares Corp. v. St. Paul Mercury Ins., 

407 F.3d 631, 642 (4th Cir. 2005) (same under Virginia law). 

Of the two California courts to address this issue, ACS 

Systems suggested that such a provision would provide 

coverage, see 53 Cal. Rptr. 3d at 798, but JT’s Frames held 

that it does not, see 104 Cal. Rptr. 3d at 588.

This issue frequently arises in claims under the 

Telephone Consumer Protection Act of 1991 (“TCPA”), a 

statute which generally prohibits the use of “any . . . device 

to send, to a telephone facsimile machine, an unsolicited 

advertisement.”1 47 U.S.C. § 227(b)(1)(C). The TCPA’s 

explicit purpose “is to protect privacy rights,” L.A. Lakers, 

Inc. v. Fed. Ins., 869 F.3d 795, 803 (9th Cir. 2017) (lead 

 1 The TCPA permits unsolicited advertisements as part of an 

established business relationship or with notice of the recipient’s right to 

opt out of future advertising. See 47 U.S.C. § 227(b)(1)(C), (b)(2)(D)–

(E).
4 YAHOO! V. NAT’L UNION FIRE INS. CO.

opinion); see 47 U.S.C. § 227(b)(2)(C) (referencing “the 

privacy rights that [the TCPA] is intended to protect”)—

specifically, the right to seclusion. See Park Univ. Enters., 

Inc. v. Am. Cas. Co. of Reading, PA, 442 F.3d 1239, 1249 

(10th Cir. 2006) (“Courts have consistently held the TCPA 

protects a species of privacy interest in the sense of 

seclusion.”). Because the TCPA does not implicate 

violations of the right to secrecy, insurance coverage of 

TCPA liability turns on whether “publication . . . of material 

that violates a person’s right of privacy” applies to the right 

to secrecy, seclusion, or both.

We need guidance in applying California’s rules 

governing the interpretation of insurance policies in this 

context. Although we may hazard a guess, the tension 

between the two California Court of Appeal decisions 

“inhibit[s] our ability to ‘predict how the [California 

Supreme Court] would decide,’ as we are bound to do.” 

Patterson v. City of Yuba City, 884 F.3d 838, 841 (9th Cir. 

2018) (second alteration in Patterson) (quoting McKown v. 

Simon Prop. Grp. Inc., 689 F.3d 1086, 1091 (9th Cir. 2012)). 

The California Supreme Court sometimes looks to decisions 

in other jurisdictions for their persuasive value, see, e.g., 

People v. Wade, 369 P.3d 546, 548 (Cal. 2016); TRB Invs., 

Inc. v. Fireman’s Fund Ins., 145 P.3d 472, 476 (Cal. 2006) 

(reversing Court of Appeal’s construction of insurance 

policy based in part on “different interpretations of this or 

similar language” by out-of-state courts), but the 

inconsistent results from courts outside of California only 

increase the difficulty in predicting how the California 

Supreme Court would rule. Compare Am. States Ins. v. 

Capital Assocs. of Jackson Cty., Inc., 392 F.3d 939, 940, 943 

(7th Cir. 2004) (holding it was “[s]o clear” under Illinois law 

that TCPA claims were not “publication of material that 

violates a person’s right of privacy” that the insurer did not 
YAHOO! V. NAT’L UNION FIRE INS. CO. 5

need to provide a defense), with Valley Forge Ins. v. 

Swiderski Elecs., Inc., 860 N.E.2d 307, 323 (Ill. 2006) 

(holding that under Illinois law such a policy provision did 

indeed cover TCPA claims).

I.

Certified Question

Therefore, pursuant to Rule 8.548 of the California Rules 

of Court, we respectfully ask the California Supreme Court 

to exercise its discretion to decide the following certified 

question:

Does a commercial liability policy that 

covers “personal injury,” defined as “injury

. . . arising out of . . . [o]ral or written 

publication . . . of material that violates a 

person’s right of privacy,” trigger the 

insurer’s duty to defend the insured against a 

claim that the insured violated the Telephone 

Consumer Protection Act by sending 

unsolicited text message advertisements that 

did not reveal any private information?

Our phrasing of the question should not restrict the 

California Supreme Court’s consideration of the issues 

involved. The California Supreme Court may rephrase the 

question as it sees fit in order to address the parties’ 

contentions. See Cal. R. Ct. 8.548(f)(5). If the California 

Supreme Court agrees to decide this question, we agree to 

accept its decision. See id. R. 8.548(b)(2). We recognize 

that the California Supreme Court has a substantial caseload, 

and we submit this question because of its significance to the 

many class actions involving TCPA claims against insureds 
6 YAHOO! V. NAT’L UNION FIRE INS. CO.

with these policies and the large amounts of potential 

liability at stake.

II.

Background Facts

National Union sold Yahoo! five consecutive one-year 

policies for commercial general liability insurance, which 

consisted of a standard policy form modified by an 

endorsement that the parties negotiated. Subject to certain 

exclusions, the standard policy covered liability for both 

“personal and advertising injury,” defined as injury arising 

out of any of seven specified offenses, including “[o]ral or 

written publication, in any manner, of material that violates 

a person’s right of privacy.” The standard policy excluded 

personal and advertising injury arising from the distribution 

of material in violation of the TCPA.

The endorsement modified this coverage in three key 

ways. First, it deleted the express exclusion of injuries 

arising from TCPA violations. Second, it limited the scope 

of coverage to “personal injury,” which it defined as injury 

arising out of any of five offenses:

a. False arrest, detention, or imprisonment;

b. Malicious prosecution;

c. The wrongful eviction from, wrongful entry into, or 

invasion of the right of private occupancy of a room, 

dwelling or premises that a person occupies, 

committed by or on behalf of its owner, landlord or 

lessor;
YAHOO! V. NAT’L UNION FIRE INS. CO. 7

d. Oral or written publication, in any manner, of 

material that slanders or libels a person or 

organization or disparages a person’s or 

organization’s goods, products or services; or

e. Oral or written publication, in any manner, of 

material that violates a person’s right of privacy.

Third, the endorsement excluded coverage of 

“advertising injury,” which it defined as injury arising from 

any of four offenses:

a. Oral or written publication, in any manner, of 

material in your “advertisement” that slanders or 

libels a person or organization or disparages a 

person’s or organization’s goods, products or 

services;

b. Oral or written publication, in any manner, of 

material in your “advertisement” that violates a 

person’s right of privacy;

c. The use of another’s advertising idea in your 

“advertisement”; or

d. Infringing upon another’s copyright, trade dress or 

slogan in your “advertisement.”

Yahoo! was a defendant in five putative class actions—

two in California, two in Illinois, and one in Pennsylvania—

alleging injuries that arose during the time periods covered 

by the National Union policies. All five lawsuits alleged that 

Yahoo! violated the TCPA by transmitting unsolicited text 

message advertisements to putative class members. The 

California lawsuits alleged that Yahoo! “invad[ed] [the 

plaintiffs’] privacy” by negligently or willfully sending them 
8 YAHOO! V. NAT’L UNION FIRE INS. CO.

unsolicited text messages in violation of the TCPA. In 

addition, one of the Illinois lawsuits asserted that the TCPA 

claim was “an effort to enforce [the plaintiffs’] fundamental 

federal right to privacy.”

When National Union refused to tender a defense in the 

underlying TCPA litigation, Yahoo! commenced this action 

for breach of contract. The district court granted National 

Union’s motion to dismiss, concluding that the policy’s 

coverage of personal injury arising out of “publication . . . of 

material that violates a person’s right of privacy” does not 

apply to Yahoo!’s TCPA liability.

III.

California Case Law

Two California Courts of Appeal have addressed 

whether “right of privacy” insurance provisions cover TCPA 

violations. In ACS Systems, the policy covered “advertising 

injury” only and the advertising injury offense at issue was 

“[m]aking known to any person or organization written or 

spoken material that violates an individual’s right of 

privacy.” 53 Cal. Rptr. 3d at 790, 794 (emphasis added). 

The court interpreted this language “such that the injured 

party is the one whose private material is made known, not 

the one to whom the material is made known.” Id. at 795 

(quoting Res. Bankshares, 407 F.3d at 641). Thus, ACS 

Systems held that TCPA claims, which implicate the right to 

seclusion, were not covered under the policy, which was 

limited to violations of the right to secrecy, because “the 

recipient of an unauthorized advertising fax has no claim that 

‘material that violates an individual’s right of privacy’ has 

been ‘made known’ to a third party.” Id. at 795–96.
YAHOO! V. NAT’L UNION FIRE INS. CO. 9

ACS Systems distinguished several cases finding TCPA 

coverage where the policy language, like that here, covered 

advertising injury “arising out of . . . oral or written 

publication of material that violates a person’s right of 

privacy.” Id. at 798 (quoting Park Univ. Enters., Inc. v. Am. 

Cas. Co. of Reading, PA, 314 F. Supp. 2d 1094, 1099 (D. 

Kan. 2004)). ACS Systems concluded that those cases 

involved “differ[ent]” policy language that “did not define 

‘right of privacy’ or ‘oral or written publication.’” Id.; cf.

Swiderski Elecs., 860 N.E.2d at 322 (finding coverage under 

the policy language at issue here and observing that 

“wording seems to have been an important factor” in 

Resource Bankshares’ opposite result under policy language 

similar to that in ACS Systems).

In JT’s Frames, the Court of Appeal considered the 

policy language that ACS Systems found distinguishable—

advertising injury arising from “oral or written publication 

of material that violates a person’s right of privacy”—and 

held that it did not cover TCPA liability. JT’s Frames, 

104 Cal. Rptr. 3d at 576, 588. In reaching this holding, JT’s 

Frames relied principally on the “last antecedent” canon of 

construction, which provides that “qualifying words, phrases 

and clauses are to be applied to the words or phrases 

immediately preceding and are not to be construed as 

extending to or including others more remote.” People v. 

Pennington, 400 P.3d 14, 21 (Cal. 2017) (quoting People v. 

Lewis, 181 P.3d 947, 1002 (Cal. 2008)). Applying this rule, 

JT’s Frames concluded that “the phrase ‘that violates a 

person’s right to privacy’ must be construed to modify the 

word ‘material’” rather than the phrase “publication of 

material.” 104 Cal. Rptr. 3d at 586. The court reasoned that 

“to come within the policies’ definition of advertising injury, 

the material at issue must ‘violate[] a person’s right to 

privacy.’” Id. (alteration in original). And that would be the 
10 YAHOO! V. NAT’L UNION FIRE INS. CO.

case “only if the material contained confidential information 

and violated the victim’s right to secrecy.” Id.

Other courts disagree that the last antecedent canon 

necessarily applies in this context. See Penzer, 29 So. 3d at 

1007 (observing that “the doctrine . . . is not an absolute 

rule” and finding “that the clause ‘that violates a person’s 

right of privacy’ is applicable as much to ‘publication’ as to 

‘material;’ therefore, the clause should be read as applicable 

to all”); Owners Ins. v. European Auto Works, Inc., 695 F.3d 

814, 821 (8th Cir. 2012) (“While it is possible that the 

limiting phrase was intended to modify only the word

‘material,’ it is equally possible to read the provision so that 

the limiting phrase modifies the preceding phrase

‘publication of material.’”); Cynosure, Inc. v. St. Paul Fire 

and Marine Ins., 645 F.3d 1, 5 n.3 (1st Cir. 2011) (“It is not 

so clear that ‘publication’ would not be fairly read as 

modified, even with ‘material’ in between.”).

Courts in other jurisdictions also take issue with JT’s 

Frames’ assumption that “material” violates a person’s right 

to privacy only if it reveals that person’s secret information 

to a third party. See Penzer, 29 So. 3d at 1007 (“[E]ven if 

the phrase ‘that violates a person’s right of privacy’ only 

modifies the term ‘material,’ it does not follow that only the 

secrecy right to privacy is implicated because ‘material’ 

could also invade one’s seclusion.”); Fray-Witzer, 

869 N.E.2d at 574 (“In effect, the insurers argue that the 

policy’s definition of injury should be read to say ‘[o]ral or 

written publication of material, the content of which violates 

a person’s right of privacy.’”).

JT’s Frames also looked to the provision’s context in the 

policy as one of four “advertising injury” offenses. 104 Cal. 

Rptr. 3d at 587. The other three types of advertising injury 

“all involve[d] injury caused by the information contained in 
YAHOO! V. NAT’L UNION FIRE INS. CO. 11

the advertisement.” Id. Given that context, JT’s Frames 

concluded that the “right of privacy” provision “may most 

reasonably be interpreted as referring to advertising material 

whose content violates a person’s right of privacy.” Id.

One of the neighboring “advertising injury” offenses in 

JT’s Frames, “oral or written publication of material that 

slanders or libels a person or organization or disparages a 

person’s or organization’s goods, products or services,” id., 

is nearly identical to one of the “personal injury” offenses

here. However, the other three “personal injury” offenses 

covered in the policy here—“[f]alse arrest, detention, or 

imprisonment,” “malicious prosecution,” and “wrongful . . . 

invasion of the right of private occupancy”—are different 

and do not involve injury caused by information in an 

advertisement. Moreover, the two “personal injury” 

offenses covered here that are similar to “advertising injury” 

offenses covered in the JT’s Frames policy also have 

analogues in the “advertising injury” offenses here that are 

excluded from coverage. The difference between the 

parallel provisions in the policy here is that in the 

“advertising injury” offenses, the word “material” is 

immediately followed by “in your ‘advertisement’” whereas 

the “personal injury” offenses lack this modification. Thus, 

there are significant differences between the contextual 

setting here and in JT’s Frames.

We would greatly benefit from knowing whether the 

California Supreme Court agrees with JT’s Frames

application of the last antecedent rule and to what extent its 

interpretation of the relevant policy language depends on 

other contextual factors—in particular, the distinction 

between personal and advertising injury. We therefore 

respectfully ask that the California Supreme Court decide the 

certified question.
12 YAHOO! V. NAT’L UNION FIRE INS. CO.

IV.

Administrative Information

We provide the following information as required by 

California Rule of Court 8.548(b)(1).

The title of this case is: YAHOO! INC., PlaintiffAppellant v. NATIONAL UNION FIRE INSURANCE 

COMPANY OF PITTSBURGH, PENNSYLVANIA, 

Defendant-Appellee.

The case number in our court is 17-16452.

Plaintiff-Appellant Yahoo! Inc. is represented by the 

following counsel:

William T. Um

Jassy Vick Carolan LLP

800 Wilshire Boulevard, Suite 800

Los Angeles, California 90017

Defendant-Appellee National Union Fire Insurance 

Company of Pittsburgh, Pennsylvania is represented by the 

following counsel:

Jodi S. Green

Nicolaides Fink Thorpe Michaelides Sullivan LLP

626 Wilshire Boulevard, Suite 1000

Los Angeles, California 90017

Richard H. Nicolaides, Jr. and Daniel I. Graham, Jr.

Nicolaides Fink Thorpe Michaelides Sullivan LLP

10 South Wacker, 21st Floor

Chicago, Illinois 60606
YAHOO! V. NAT’L UNION FIRE INS. CO. 13

Matthew Lovell

Nicolaides Fink Thorpe Michaelides Sullivan LLP

101 Montgomery Street, Suite 2300

San Francisco, California 94104

We designate Yahoo! Inc. as the petitioner if our request 

for a decision is granted, as it is the appellant before our 

court.

* * *

We direct the Clerk of Court to transmit immediately to 

the California Supreme Court, under official seal of the 

United States Court of Appeals for the Ninth Circuit, copies 

of all relevant briefs and excerpts of record, as well as an 

original and 10 copies of this order, with a certificate of 

service on the parties. See Cal. R. Ct. 8.548(c)–(d).

This case is withdrawn from submission and will be 

resubmitted following receipt of the California Supreme 

Court’s opinion on the certified question or notification that 

it declines to answer the certified question. The Clerk of 

Court shall administratively close this docket pending a 

ruling by the California Supreme Court. The panel shall 

retain jurisdiction over further proceedings in this court.

The parties shall notify the Clerk of Court within one 

week after the California Supreme Court accepts or rejects 

certification. In the event that the California Supreme Court 

grants certification, the parties shall notify the Clerk of Court 

within one week after the California Supreme Court renders 

its opinion.

IT IS SO ORDERED.