YAHOO! INC., A Delaware corporation v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, a Pennsylvania…

NOT FOR PUBLICATION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
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Nathanael M. Cousins, Magistrate Judge, Presiding
Argued and Submitted December 17, 2018
Submission Withdrawn January 16, 2019
Resubmitted December 2, 2022
San Francisco, California
Before: M. SMITH and NGUYEN, Circuit Judges, and RESTANI,** Judge.
Yahoo! Inc. appeals from the district court’s judgment dismissing its
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
FILED
DEC 6 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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complaint against National Union Fire Insurance Company of Pittsburgh,
Pennsylvania for failure to state a claim. Yahoo! alleges that National Union
breached its duty to defend Yahoo! against claims that Yahoo! violated the
Telephone Consumer Protection Act (“TCPA”). The lawsuits against Yahoo!
alleged that it invaded consumers’ privacy by sending them unsolicited text
messages. The district court ruled that the insurance coverage provision at issue,
for personal injury arising out of “[o]ral or written publication, in any manner, of
material that violates a person’s right of privacy,” does not apply to the TCPA
litigation against Yahoo!.
Because it was unclear how California courts would interpret this coverage
provision, we certified the question to the California Supreme Court. See Yahoo!
Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 913 F.3d 923 (9th Cir. 2019).
That court held that the coverage provision “can cover liability for violations of the
right of seclusion,” including liability for “violat[ing] the TCPA by sending
unsolicited text messages that did not reveal any private or secret information,” so
long as “such coverage is consistent with the insured’s objectively reasonable
expectations.” Yahoo Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., No.
S253593, slip op. at 23, 2022 WL 16985647, at *10 (Cal. Nov. 17, 2022). If so,
then the insurer has a duty to defend the insured against the TCPA claims,
“provided that the alleged TCPA violation amounts to a right-of-seclusion

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violation under California law.” Id.
The California Supreme Court expressed no opinion as to the ultimate
question—whether Yahoo! is entitled to a defense—because “Yahoo!’s objectively
reasonable expectations . . . must be determined in further litigation.” Id. at 18,
2022 WL 16985647, at *8. Because the present record may be inadequate for us to
determine Yahoo!’s reasonable expectations and the parties have not briefed the
issue, we remand for the district court to resolve it, as well as any other issues that
arise,1 in the first instance.
REVERSED AND REMANDED.
1 The California Supreme Court did not address National Union’s new
argument that a policy exclusion for advertising injury bars coverage because “the
record . . . does not indicate whether the text messages at issue here were
advertisements as that term is defined in the policy.” Id. at 23, 2022 WL
16985647, at *9.

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