This post examines an opinion from the U.S. District Courtfor the Northern District of California:
McKenna v. WhisperText, 2015
WL 5264750 (2015). The U.S. MagistrateJudge, as judges usually do, begins the opinion by outlining what it involves:
Defendants WhisperText, LLC, and
WhisperText, Inc. operate an anonymous sharing service called Whisper. The idea
is to allow users to share their ideas, hopes and fears without attribution.
Like many services accessed primarily on mobile devices, the Whisper App allows
users to select contacts and invite those contacts by SMS text to try Whisper
for themselves.
At issue is whether Whisper's text
invitations, as alleged, use an automated telephone dialing system (ATDS) in
violation of the Telephone Consumer Protection Act (TCPA). Because the present
complaint, like those complaints that preceded it, does not state any
cognizable claim under the TCPA, WhisperText's motion to dismiss is GRANTED.
Plaintiff Tony McKenna already has received leave to amend twice; any
further leave to amend would be futile and is DENIED.
McKenna v.
WhisperText, supra. Under Rule15(a)(1)(a) of the Federal Rules of Civil Procedure, which govern practice in
federal courts, a plaintiff (the person who brings the suit) can amend
his/her/its “pleading once as a matter of course . . . within 21 days of
filing” it with the court and serving it on the defendant(s). After that, the plaintiff has to get the
defendant(s)’ consent to amend the complaint and the “court’s leave” to do so.
The judge then takes up the substance of the case,
explaining, initially, that the
Telephone Consumer Protection Act, 47U.S. Code § 227, makes it unlawful to `make any call . . . using any automatic
telephone dialing system . . . to any telephone number assigned to a . . . cellular
telephone service.’ 47 U.S. Code § 227(b)(1)(A)(iii). An ATDS is defined as any
`equipment which has the capacity–(A) to store or produce telephone numbers to
be called, using a random or sequential number generator; and (B) to dial such
numbers.’ 47 U.S. Code § 227(b)(1)(A)(iii). When Congress passed the TCPA,
it directed the Federal Communications Commission to promulgate regulations to
implement the Act's requirements. 47 U.S. Code 227(b)(2).
In accordance with this mandate, the
FCC has clarified that Section 227(a)(1)'s definition of an ATDS covers `any
equipment’ with the capacity to `generate numbers and dial them without human
intervention regardless of whether the numbers called are randomly or
sequentially generated or come from calling lists.’ The [U.S. Court of Appeals for the 9th Circuit] has held that text messages constitute calls under the
TCPA, and the alleged use of `long codes’ to transmit generic messages en
masse has been deemed sufficient to allege the use of an ATDS under the federal
pleading requirements.
McKenna v.
WhisperText, supra.
The judge then outlines how, and why, this lawsuit arose:
Around December 19, 2013, McKenna's
cell phone rang. He had received an SMS from `16502412157,’ a
special purpose `long code’ telephone number operated by WhisperText and its
agents. The message 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.’ Soon
afterward, McKenna filed this suit, alleging that WhisperText had violated his
rights under the TCPA. McKenna proposes to represent a class of
individuals that received such unsolicited Whisper invitations and seeks an
injunction requiring WhisperText to `cease all wireless spam activities and an
award of statutory damages to the class members, together with costs and
reasonable attorneys' fees.’
McKenna v.
WhisperText, supra. The stories you
can find here and here provide more information about the class action suit
McKenna proposed.
The opinion goes on to explain that the Judge
dismissed McKenna's first amended
complaint for failure to allege plausible facts suggesting that the Whisper app
used an ATDS sufficient to trigger TCPA liability. McKenna then amended his
complaint to allege that WhisperText used equipment `that had the capacity at
the time the calls were placed to store or produce telephone numbers to be
called using a random or sequential number generator and to dial such numbers,’
that is, an ATDS.
However, McKenna's third amended
complaint and opposition made it clear that `the Whisper App [could] send
SMS invitations only at the user's affirmative direction to recipients selected
by the user.’ The court held that because WhisperText's equipment required
human intervention, McKenna again failed to allege facts sufficient to show
that WhisperText's equipment satisfied the statutory definition of an ATDS.
In his fourth amended complaint,
McKenna removed all mention of the WhisperText customer's role in deciding to
send invitations to contacts, and in selecting the invitation's
recipients. McKenna now focuses on the processes by which WhisperText
harvests the selected contacts' phone numbers from the customer's cell phone,
uploads those numbers to a third party communications provider operating a
platform for sending text messages and sends out the invitations to those
numbers through the platform.
McKenna alleges that `the entire
process’ of harvesting, uploading, and sending is `automated and performed without
any human intervention’ by WhisperText and the third-party platform. McKenna also adds allegations that the platform
is regularly used to conduct `mass spamming events’ as part of `mobile growth
hacking,’ where unscrupulous entities use the platform to send unsolicited
invitational text messages.
WhisperText now moves to dismiss
McKenna's fourth amended complaint with prejudice, arguing that further
amendment would be futile.
McKenna v. WhisperText,
supra.
The Judge then began the substantive part of his opinion,
explaining that the
court has jurisdiction under 28 U.S. Code § 1331. The parties consented to the jurisdiction of the undersigned
magistrate judge under 28 U.S. Code § 636(c) and Federal Rules of Civil Procedure 72(a).
Rule 12(b)(6) of the Federal Rules ofCivil Procedure permits challenges to the legal sufficiency of the opposing
party's pleadings. The court must accept all material allegations in the
complaint as true and construe them in the light most favorable to the
non-moving party. The court's review is limited to the face of the
complaint, materials incorporated into the complaint by reference, and matters
of which the court may take judicial notice.
However, the court need not accept as
true allegations that are conclusory, unwarranted deductions of fact, or
unreasonable inferences. If a plaintiff fails to proffer `enough
facts to state a claim to relief that is plausible on its face,’ the complaint
may be dismissed for failure to state a claim upon which relief may be granted. A
claim is facially plausible `when the pleaded factual content allows the court
to draw the reasonable inference that the defendant is liable for the
misconduct alleged’ `Dismissal can be based on the lack of a cognizable legal
theory or the absence of sufficient facts alleged under a cognizable legal
theory.’
McKenna v.
WhisperText, supra.
The judge then began his analysis of the parties’ arguments,
noting that there is
`nothing in the Federal Rules of Civil
Procedure to prevent a party from filing successive pleadings that make
inconsistent or even contradictory allegations.’ However, when evaluating an
amended complaint, `[t]he court may also consider the prior allegations as part
of its “context-specific” inquiry based on its judicial experience and common
sense to assess whether” an amended complaint “plausibly suggests an
entitlement to relief.’ Applying these standards against McKenna's amended
claim, the claim fails as follows.
McKenna v.
WhisperText, supra. He goes on to
apply the standards to his claim:
First, McKenna again
fails to state a claim that WhisperText used an ATDS to send him an unwanted
message. As the court held in its previous order, McKenna's statements that the
Whisper App sends text invitations only at the user's affirmative direction
foreclose any plausibility that WhisperText sends messages using an ATDS,
without human intervention. Perhaps in response, the fourth amended
complaint strives mightily to direct attention to WhisperText's automated
processes, and discusses them as if they were completely detached from any user
direction. Nonetheless, it neither denies nor contradicts McKenna's
earlier allegations regarding the user's role.
Therefore, while this court accepts as
plausible the allegations that WhisperText uses automated processes to harvest
phone numbers from a Whisper App user's phone and upload them to a third-party
platform, and that the platform uses automated processes to send invitational
messages to those numbers, it is undeniable from McKenna's previous allegations
that the human intervention of a Whisper App user is necessary to set those
processes in motion. In light of the need for human intervention,
McKenna's allegations that WhisperText and assorted non-party companies use a
third-party platform are irrelevant.
Since the court's previous dismissal
order, this district again has held that where an application sends SMS
invitations only at the user's affirmative direction, the action taken is with
human intervention, meaning that the equipment at issue is not an ATDS.
In Glauser v. GroupMe, Inc., the application GroupMe sent out
invitational `Welcome Texts’ to selected recipients after obtaining their phone
numbers through a GroupMe user's actions. Like McKenna, Glauser
argued that once the GroupMe user selected phone numbers for GroupMe to
message, the `”entire process was automated,’ and ‘[n]o human intervention was
needed or involved.”’ The court rejected this argument, finding `no basis
for plaintiff's argument that the Welcome Texts were sent without human
intervention.’
McKenna cites to Harnish v.
Frankly Co., 2015 WL 1064442 (U.S.
District Court for the Northern District of California 2015) and Sterk
v. Path, Inc., 46 F.Supp.3d 813 (U.S. District Court for the Northern District of Illinois 2014), to support
his argument that his claims regarding WhisperText's automated processes
sufficiently allege a valid TCPA claim. But in Harnish the
complaint did not allege any actions by the Frankly App's users, and alleged
only the actions taken by Frankly Co.'s automated processes. And while Sterk held that user
actions such as `clicking prompts to upload their phone contacts’ were not
human intervention,’ `in Sterk the Path system
determined which number to call or text (from the user-provided list of numbers),
[and] when to call. . . .Here, the . . . user has control over each of these
variables.’
McKenna v.
WhisperText, supra.
He went on to explain that,
Second, the FCC
recently found that an application that required human intervention to send invitational
messages was not the `maker or initiator’ of the calls for TCPA purposes. The
TCPA prohibits the making of calls to a cellular phone number using an ATDS
without the recipient's prior express consent, and the FCC's implementing
regulations state that no person may `initiate’ a call to a cellular phone
using an ATDS without prior express consent. While passing judgment on
TextMe, a messaging application, the FCC provided generally applicable
guidelines for deciding whether an application or its user was the maker or
initiator of a call.
TextMe sends invitational messages
when a user makes the `affirmative choices’ to (1) tap a button reading `invite
your friends’; (2) choose whether to invite all or some contacts; and (3) press
another button to send the invitational text message. The FCC
concluded that, taking `into account the goals and purposes of the TCPA,’ the `app
user's actions and choices effectively program[med] the cloud-based dialer to
such an extent that he or she is so involved in the making of the call as to be
deemed the initiator of the call.’ Accordingly, even though WhisperText uses
automated processes to harvest and upload a user's selected phone numbers and
then send invitational messages, that is insufficient to make WhisperText the
maker or initiator of a call using an ATDS under the TCPA.
McKenna v.
WhisperText, supra.
The judge, therefore, held that
WhisperText's motion to dismiss is
GRANTED. Because McKenna has twice received leave to amend, and because it is
clear the complaint cannot be saved by amendment, given McKenna's prior
allegations about the need for human intervention, leave to amend is DENIED.
A separate judgment will issue.
McKenna v.
WhisperText, supra.
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