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COMPLAINT FOR BREACH OF CONTRACT (DUTY TO DEFEND) 

KILPATRICK TOWNSEND & STOCKTON LLP 

WILLIAM T. UM (State Bar No. 166536) 

WUm@kilpatricktownsend.com 

HEATHER W. HABES (State Bar No. 281542) HHabes@kilpatricktownsend.com 

9720 Wilshire Blvd PH 

Beverly Hills, CA 90212-2018 

Telephone: 310-248-3830 

Facsimile: 310-860-0363 

Attorneys for Plaintiff 

YAHOO! INC. 

UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

YAHOO! INC., a Delaware

corporation, 

Plaintiff, 

v. 

NATIONAL UNION FIRE 

INSURANCE COMPANY OF 

PITTSBURGH, PA, a Pennsylvania 

corporation, 

Defendant. 

CASE NO.: 

COMPLAINT FOR BREACH OF 

CONTRACT (DUTY TO DEFEND) 

DEMAND FOR JURY TRIAL 

Plaintiff Yahoo! Inc. (“Yahoo”) files this Complaint against National Union 

Fire Insurance Company of Pittsburgh, PA (“National Union”), alleging as follows: 

1. This lawsuit arises out of National Union’s failure to honor its 

contractual obligation to defend Yahoo under a series of commercial general liability 

insurance policies, in connection with class action lawsuits filed in California, 

Illinois, and Pennsylvania against Yahoo alleging violations of the Telephone 

Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”). Yahoo brings a single 

claim for breach of contract pertaining to National Union’s duty to defend, and seeks 

to recover damages resulting from National Union’s breach. 

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COMPLAINT FOR BREACH OF CONTRACT (DUTY TO DEFEND) 

The Parties, Jurisdiction And Venue 

2. Plaintiff Yahoo is a corporation formed under the laws of the State of 

Delaware with its principal place of business in Sunnyvale, California. 

3. Defendant National Union is a corporation organized under the laws of 

Pennsylvania, with its principal place of business in New York, New York. As 

detailed below, National Union issued numerous insurance policies to Yahoo. 

National Union is a member of the AIG family of insurers.

4. This Court has jurisdiction over the subject matter of this complaint 

pursuant to 28 U.S.C. § 1332(a) because there is complete diversity of citizenship 

between the parties and the amount in controversy exceeds the sum of $75,000, 

exclusive of interest and costs.

5. Venue is proper in this District under 28 U.S.C. § 1391(b)(1), (c)(2) and 

(d) in that National Union is subject to personal jurisdiction because it regularly 

transacts business in California and is an admitted insurer in California. Venue is 

also proper under 28 U.S.C. § 1391(b)(2) because the contracts of insurance that are 

the subject of this action were entered into and were to be performed within this 

District, and the underlying events giving rise to Yahoo’s claim for insurance 

coverage occurred within this District. 

Text Message Litigation Against Yahoo 

6. During the period of January 2013 to April 2014, several class action 

lawsuits were filed against Yahoo alleging violations of the TCPA as a result of its 

alleged transmission of unsolicited text messages. These claims are detailed below 

and are collectively referred to hereafter as the “Text Message Litigation.” 

(A) California Lawsuits 

Sherman v. Yahoo! Inc., Case No. 3:13-cv-00041 (S.D. Cal.)

7. On January 8, 2013, plaintiff Rafael David Sherman filed a class action 

complaint against Yahoo in the United States District Court for the Southern District 

of California (the “Sherman Complaint”). The Sherman Complaint asserts two 

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COMPLAINT FOR BREACH OF CONTRACT (DUTY TO DEFEND) 

claims against Yahoo: (1) “Negligent Violations of the Telephone Consumer 

Protection Act,” and (2) “Knowing and/or Willful Violations of the Telephone 

Consumer Protection Act.” Both claims are premised on Yahoo’s alleged action of 

“negligently and/or intentionally contacting Plaintiffs on Plaintiffs’ cellular 

telephones, in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 

et seq., (“TCPA”), thereby invading Plaintiffs’ privacy.” 

8. Plaintiffs in Sherman contend that Defendant “illegally contacted 

Plaintiff and the Class members via their cellular telephones by using an unsolicited 

SPAM text messages [sic], thereby causing Plaintiff and the Class members to incur 

certain cellular telephone charges or reduce telephone cellular time for which Plaintiff 

and the Class members previously paid, and invading the privacy of said Plaintiff and 

Class members.” The Sherman Complaint further alleges that “[t]he TCPA was 

designed to prevent calls like the ones described within this complaint, and to protect 

the privacy of citizens like Plaintiff.” 

9. The Sherman Complaint seeks to recover on behalf of the putative class 

consisting of “all persons within the United States who received a text message 

substantially similar or identical to the text message described in Paragraph 15 of this 

Complaint from Defendant without prior express consent, which message by 

Defendant or its agents was not made for emergency purposes, within the four years 

prior to the filing of this Complaint.” 

Reza v. Yahoo! Inc., Case No. 3:13-cv-00071 (S.D. Cal.)

10. On January 10, 2013, plaintiffs Raquel Reza and Shafiq Memon filed 

their class action complaint against Yahoo in the United States District Court for the 

Southern District of California (the “Reza Complaint”). The Reza Complaint asserts 

two claims against Yahoo: (1) “Negligent Violations of the Telephone Consumer 

Protection Act,” and (2) “Knowing and/or Willful Violations of the Telephone 

Consumer Protection Act.” Both claims are premised on Yahoo’s alleged action of 

“negligently and/or intentionally contacting Plaintiffs on Plaintiffs’ cellular 

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COMPLAINT FOR BREACH OF CONTRACT (DUTY TO DEFEND) 

telephones, in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 

et seq., (“TCPA”), thereby invading Plaintiffs’ privacy.” 

11. The Reza Complaint seeks to recover on behalf of the putative class 

consisting of “all persons within the United States who received a text message 

substantially similar or identical to the text messages described in Paragraphs 11 and 

13 of this Complaint from Defendant without prior express consent, which message 

by Defendant or its agents was not made for emergency purposes, within the four 

years prior to the filing of this Complaint.” 

12. The Reza Complaint was deemed related to the Sherman Complaint and 

transferred on March 27, 2013. The Reza Complaint was dismissed without prejudice 

on April 17, 2013, and the Sherman Complaint was dismissed with prejudice on 

March 3, 2016. 

(B) Illinois Lawsuits 

Johnson v. Yahoo! Inc., Case No. 14-cv-02028 (N.D. Ill.) 

13. On March 21, 2014, plaintiff Rachel Johnson filed a class action 

complaint against Yahoo in the United States District Court for the Northern District 

of Illinois (the “Johnson Complaint”). The Johnson Complaint asserts a single count 

against Yahoo for violation of the TCPA. This claim is premised on plaintiff’s 

allegation that Yahoo used “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. ...” And that “[i]n 

an effort to enforce this fundamental federal right to privacy, Plaintiff files the instant 

class action complaint alleging violations of the TCPA.” 

14. The Johnson Complaint seeks to recover on behalf of the putative class 

consisting of “(1) All persons within 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.” 

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COMPLAINT FOR BREACH OF CONTRACT (DUTY TO DEFEND) 

Calderin v. Yahoo! Inc., Case No. 14-cv-02753 (N.D. Ill.) 

15. On April 16, 2014, plaintiff Zenaida Calderin filed a class action 

complaint against Yahoo in the United States District Court for the Northern District 

of Illinois (the “Calderin Complaint”). The Calderin Complaint asserts a single 

count against Yahoo for violation of the TCPA. This claim is premised on Yahoo’s 

alleged sending of “unsolicited and unauthorized” text messages “without prior 

express consent via an automatic dialing system.” 

16. The Calderin Complaint seeks to recover on behalf of the putative class 

consisting of persons who: “from on or after four years prior to the filing of this 

action, (ii) were recipients of texts to their cellular phone numbers ... by or on behalf 

of Yahoo, and (iii) with respect to whom Yahoo cannot provide evidence of prior 

express written consent.” 

17. The Calderin Complaint and the Johnson Complaint were consolidated 

in a single action by order dated July 3, 2014, under Case No. 14-cv-02028. This 

consolidated action is still pending.

(C) Pennsylvania Lawsuit 

Dominguez v. Yahoo! Inc., Case No. 13-cv-01887 (E.D. Penn.) 

18. On April 10, 2013, plaintiff Bill H. Dominguez filed a class action 

complaint against Yahoo in the United States District Court for the Eastern District of 

Pennsylvania (the “Dominguez Complaint”). The Domiguez Complaint asserts a 

single count against Yahoo for violation of the TCPA. This claim is premised on the 

allegation that Yahoo “directly and/or vicariously used an ATDS [automatic 

telephone dialing system] to initiate numerous unsolicited telephone calls to the 

cellular telephone numbers of Plaintiff and the Class.” An amended complaint was 

filed on December 4, 2015 (the “Dominguez Amended Complaint”). 

19. The Dominguez Amended Complaint seeks to recover on behalf of the 

putative class consisting of “all persons residing within the territorial limits of the 

Court of Appeals for the Third Circuit who purchased a cellular telephone which, 

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COMPLAINT FOR BREACH OF CONTRACT (DUTY TO DEFEND) 

prior to its purchase, had been associated with a Yahoo! account belonging to another 

individual who had authorized the sending of text message Yahoo! Alerts to said 

telephone and to whom Yahoo! sent to the cellular telephone number at least one 

unsolicited text message, during the period beginning four (4) years prior to the filing 

of the Complaint and continuing through the date of the resolution of this case.”

20. The Dominguez Complaint is still pending. 

21. Yahoo incurred in excess of the jurisdictional amount to defend the 

California lawsuits, and continues to incur substantial defense fees and costs in 

connection with the remaining pending lawsuits in Illinois and Pennsylvania. 

The National Union Policies 

22. National Union sold to Yahoo five consecutive, one-year “Commercial 

General Liability” insurance policies covering the period of May 31, 2008 to May 31, 

2013 (the “National Union Policies”). Each of the National Union Policies provides 

Commercial General Liability coverage with a General Aggregate Limit of 

$2,000,000 subject to a $1,000,000 limit for “Personal and Advertising Injury” 

coverage, and a $1,000,000 per occurrence limit for each occurrence. The National 

Union Policies all contain substantially similar terms that provide coverage for the 

Text Message Litigation. As an example, attached hereto as Exhibit A is a true and 

correct copy of National Union Policy No. XWC 721-90-84, which covered the 

period of May 31, 2008 to May 31, 2009. 

23. The National Union Policies include a Commercial General Liability 

(“CGL”) Coverage Form. This Form includes, among other coverages, 

“COVERAGE B PERSONAL AND ADVERTISING INJURY LIABILITY” 

comprised of two sections. Section (1) is the “Insuring Agreement” and Section (2) 

is titled “Exclusions” and includes subparts numbered (a) – (p) that purport to limit 

the coverage available under the Insuring Agreement in section (1). Ex. A, CGL 

Coverage Form, Coverage B. 

24. Significantly for purposes of this lawsuit, Yahoo specifically sought to 

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COMPLAINT FOR BREACH OF CONTRACT (DUTY TO DEFEND) 

expand the “personal injury” coverage provided by the National Union Policies 

through a separately drafted manuscript endorsement. In “Endorsement No. 1”1

, 

“COVERAGE B PERSONAL AND ADVERTISING INJURY LIABILITY” of the 

Form is “deleted in its entirety and replaced” with “COVERAGE B PERSONAL 

INJURY LIABILITY” as set forth in the Endorsement (the “Personal Injury 

Endorsement”). Ex. A, End. 1 § II. In contrast to the CGL Coverage Form, this 

Personal Injury Endorsement removes several exclusions and provides broad 

coverage for “personal injury.” Id. 

25. As set forth in the Personal Injury Endorsement, the Insuring Agreement 

for “COVERAGE B PERSONAL INJURY LIABILITY” states: 

We will pay those sums that the insured becomes legally obligated to pay as 

damages because of ‘personal injury’ to which this insurance applies. We will 

have the right and duty to defend the insured against any ‘suit’ seeking those 

damages. ... 

Ex. A, End. 1 § II. 

26. “Personal injury” is defined by the Personal Injury Endorsement as 

“injury, including consequential ‘bodily injury’, arising out of one or more of the 

following offenses: ... (e) Oral or written publication, in any manner, of material that 

violates a person’s right of privacy.” Ex. A, End. 1 § III(a). 

27. Yahoo has paid all premiums due on the National Union Policies in full. 

Yahoo has also satisfied all pertinent terms of and conditions precedent to the 

National Union Policies. 

National Union’s Refusal To Defend The Text Message Litigation 

28. Yahoo provided timely notice of the Text Message Litigation, or was 

excused from providing notice, to National Union under the National Union Policies. 

In response, National Union repeatedly denied coverage. 

 

1

 Endorsement No. 1 is included in Exhibit A. The same Endorsement appears in each of the following National 

Union Policies (with only slight changes in spacing), but the title of the Endorsement differs: 2009-2010 Policy 

(“Endorsement #1); 2010-2011 (“Endorsement”); 2011-2012 Policy (“Endorsement # 004”). 

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COMPLAINT FOR BREACH OF CONTRACT (DUTY TO DEFEND) 

29. Notwithstanding National Union’s denials, Yahoo urged National Union 

to change its position, explaining in detail the bases for coverage under the National 

Union Policies by letter dated May 28, 2014. National Union, however, reconfirmed 

its denial through counsel by letter dated June 13, 2014. 

30. The Text Message Litigation alleges, among other things, “publication” 

by Yahoo of text messages that purportedly violated underlying plaintiffs’ rights to 

privacy. Additionally, none of the exclusions, conditions or limitations contained in 

the National Union Policies operate to preclude coverage. At the very least, the Text 

Message Litigation contained claims and allegations that gave rise to the potential for 

coverage, thus triggering National Union’s duty to defend Yahoo under well accepted 

insurance principles. 

31. By refusing to honor its contractual obligations to defend Yahoo in 

connection with the Text Message Litigation, National Union breached one or more 

of the National Union Policies. 

COUNT I 

(Breach of Contract – Duty to Defend) 

32. Yahoo incorporates herein by reference paragraphs 1 through 31 of this 

Complaint as fully set forth herein. 

33. National Union had a duty to defend Yahoo under the National Union 

Policies because the Text Message Litigation alleges “personal injury” arising out of 

the offense of “publication” of “material” that “violates a person’s right to privacy” 

or raised at least the potential for coverage. 

34. Yahoo complied with all applicable conditions precedent contained in 

the National Union Policies related to National Union’s duty to defend. None of the 

exclusions, conditions or limitations contained in the National Union Policies operate 

to preclude National Union’s duty to defend. 

35. By failing to defend Yahoo in the Text Message Litigation, National 

Union materially breached its obligation under one or more of the National Union 

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COMPLAINT FOR BREACH OF CONTRACT (DUTY TO DEFEND) 

Policies. 

36. As a direct and proximate result of National Union’s breach, National 

Union has deprived Yahoo of the benefit of the insurance for which Yahoo has paid 

premiums to National Union, and has caused Yahoo to incur significant legal defense 

fees and expenses in an amount exceeding the jurisdictional amount. 

37. Yahoo has been damaged in an amount to be proven at trial, which 

consists of unreimbursed defense costs associated with the Text Message Litigation, 

plus interest and other appropriate damages. 

PRAYER FOR RELIEF 

WHEREFORE, Yahoo respectfully seeks the following relief: 

A. That the Court enter judgment in favor of Yahoo; 

B. An award of damages in Yahoo’s favor in an amount to be determined 

at trial; 

C. An award of Yahoo’s reasonable attorneys’ fees, pre-judgment and 

post-judgment interest, costs and the expenses of this action; 

D. For such other and further relief as this Court deems just and proper. 

 

DATED: January 27, 2017 Respectfully submitted,

KILPATRICK TOWNSEND & STOCKTON 

LLP 

By: /s/William T. Um

WILLIAM T. UM

HEATHER W. HABES 

 Attorneys for Plaintiff

Yahoo! Inc. 

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COMPLAINT FOR BREACH OF CONTRACT (DUTY TO DEFEND) 

REQUEST FOR TRIAL BY JURY 

Yahoo hereby requests that this case be tried to a jury. 

DATED: January 27, 2017 Respectfully submitted,

KILPATRICK TOWNSEND & STOCKTON 

LLP 

By: /s/William T. Um

WILLIAM T. UM

HEATHER W. HABES 

 Attorneys for Plaintiff

Yahoo! Inc.

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