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Fenwick Beats TCPA Text Class Action

September 10, 2015

Fenwick litigation chair Rodger Cole and privacy co-chair Tyler Newby scored a victory for secret-sharing app WhisperText LLC, which faced claims that the company had violated the Telephone Consumer Protection Act (TCPA). The court dismissed a proposed class action suit, a positive outcome uncommonly early in TCPA cases.

In a recent article featuring Fenwick’s victory for Whisper, Law360 reported that U.S. Magistrate Judge Paul Grewal ruled in favor of Fenwick’s argument that Whisper’s practice of letting users send automated text messages to invite others to use the app did not transgress the TCPA, because end-users had to initiate the messages through a purposeful action.

“WhisperText is not the sender of the message,” litigation attorney Bradley Meissner told Judge Grewal in a motion to dismiss, as quoted in Law360. “If Your Honor is inclined to find that, we don’t have to get into the FCC definition of an autodialing system.”

The Fenwick team pointed to the Federal Communications Commission’s recent ruling, which clarified that apps using an automated telephone dialing system do not violate the TCPA if they first require human action to send messages.

Fenwick’s Newby, who analyzed the FCC’s TCPA order in July​, told Law360 that the FCC’s decision would affect future similar cases.

"I think in light of the FCC's ruling and opinions like this, that we’re likely to see fewer of these SMS invitation cases being filed," Newby said.

The full article is available through Law360​.​​