On August 26, 2015, we wrote about a decision out of the
Northern District of California, Luna v. Shac, LLC, Case
No. 5:14-cv-00607-HRL, 2015 WL 4941781 (N.D. Cal. Aug. 19, 2015),
in which the defendant prevailed in defeating a TCPA class action
using a "human intervention" based defense. Now, just two
weeks later, another defendant in the district has prevailed on
similar grounds. This may be a sign that this defense, bolstered by
the FCC's July 10, 2015 declaratory ruling,
may be picking up steam.
In McKenna v. WhisperText, the plaintiff
claimed a text message he received containing an anonymous
invitation from a WhisperText user to join the platform violated
the TCPA. No. 5:14-cv-00424-PSG, 2015 WL 5264750 (N.D. Cal. Sept.
9, 2015). The Court dismissed McKenna's first amended complaint
for failing to allege the WhisperText app used an ATDS to send the
texts. McKenna's next complaint made clear that the platform
could only send these texts at the affirmative
