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 direction of a user. Based on this assertion, the Court dismissed the amended complaint on “human intervention” grounds, but with leave to amend. In his next complaint, McKenna withdrew allegations about the user’s control in the process, and fast-forwarded to what happens after the user provides the app with phone numbers. Ignoring the first user-initiated step, McKenna claimed the entire process was automated and required no human intervention. Id. at 3-4.

The Court rejected plaintiff’s attempt to ignore the human element of the message-sending process, stating that McKenna “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.” Id. at 7. Notably, the Court relied on all papers on file in the action to ground its decision, concluding that: “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.” Id.

In sum, WhisperText was not the “maker or initiator” of the call — the app use was — and this human intervention defeated the case.

We will continue to watch these cases in hopes of seeing a larger trend develop that could afford defendants in other jurisdictions a similar line of defense.