This summer, we
reported on a court order issued in the Telephone Consumer
Protection Act ("TCPA") lawsuit encaptioned McKenna
v. WhisperText. The order granted defendant mobile application
provider WhisperText's motion to dismiss, but allowed the
plaintiff leave to amend his complaint. Last Wednesday, the U.S.
District Court in San Jose, California dismissed the case with
prejudice and entered judgment in favor of the defendant.
How did the app provider ultimately avoid TCPA
liability?
WhisperText's Whisper App
WhisperText is the developer and provider of the social
networking app Whisper, which allows users to anonymously share
photos and messages that are "too intimate to share on
traditional social networks." When new users download Whisper,
they are purportedly given the opportunity to invite their contacts
to download the app as well. According to court records, invitees
then receive an impersonal, unsolicited text message from a
ten-digit phone number
