Antitrust Law Daily Wrap Up, PRIVACY—N.D. Cal.: Operator of secret sharing app Whisper evades TCPA claims, (Sep 11, 2015)

By Greg Hammond, J.D.

A consumer that received a text message from operators of Whisper, an anonymous sharing service, has failed to state a claim under the Telephone Consumer Protection Act (TCPA). In granting the operators’ motion to dismiss, the federal district court in San Jose determined that the consumer failed to state a claim that the operator used an automated telephone dialing system (ATDS) to send him an unwanted message and that the operator was the initiator of a call using an ATDS (McKenna v. WhisperText, September 9, 2015, Grewal, P.).

WhisperText, LLC and WhisperText, Inc. operate Whisper, a service that allows users to share their ideas, hopes and fears without attribution. As part of the service, users can select contacts and invite them by text message to try Whisper. Plaintiff Tony McKenna received a text message in December 2013 that read, “Someone you know has anonymously invited you to join Whisper, a mobile social network for sharing secrets. Check out the app here: http://bit.ly.HLVr79.” McKenna filed a TCPA suit seeking an injunction that would require WhisperText to cease all wireless spam activities and an award of damages, along with costs and attorney fees.

The court granted WhisperText’s motion to dismiss the fourth amended complaint, finding that McKenna’s statements that the Whisper App sends text invitations only at the user’s affirmative direction foreclosed any plausibility that WhisperText sends messages using an ATDS, without human intervention. Although the court accepted as plausible the claims that WhisperText uses automated processes to harvest phone numbers from a user’s phone and uploads them to a third-party platform, and that the platform uses an automated process to send invitational messages to those numbers, human intervention of a Whisper App user is necessary to set those processes in motion. The allegations were insufficient to make WhisperText the maker or initiator of a call using an ATDS under the TCPA.

The case number is 5:14-cv-00424-PSG.

Attorneys: David Christopher Parisi (Parisi & Havens LLP) for Tony McKenna. Rodger R. Cole (Fenwick & West LLP) for WhisperText, LLC and WhisperText, Inc.

Companies: WhisperText, LLC; WhisperText, Inc.

Cases: Privacy CaliforniaNews