WhisperText Class Action Lawsuit Seeks Damages for Text Spam

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WhisperText LLC may have sent illegal text spam to 1,000 or more potential customers, according to a new class action lawsuit seeking damages under the Telephone Consumer Protection Act (TCPA). The federal law includes a fine of a minimum of $500 per illegal message.

When customers of Whisper download the gossip app, they allow access to their contact list in their Apple or Android phone. This access may have led to the sending of unwanted text messages, so-called “wireless spam,” inviting a customer’s friends and other contacts to download the app, according to the WhisperText class action lawsuit. Lead plaintiff Tony McKenna is seeking damages for more than 1,000 wireless users who were sent an unsolicited text reading, “Someone you know has anonymously invited you to join Whisper, a mobile social network for sharing secrets, Check out the app here:” and provided a link to download Whisper.

According to the Whisper class action lawsuit, “In a misguided effort to promote its mobile application or ‘app,’ Defendant engages in an especially pernicious form of marketing: the unauthorized transmission of advertising in the form of ‘text message’ calls to the cellular telephones of consumers throughout the nation.” Because Whisper sent these text messages, said the class action lawsuit, it “has violated consumers’ statutory rights and has caused consumers actual harm, not only because consumers were subjected to the aggravation that necessarily accompanies wireless spam, but also because consumers frequently have to pay their cell phone service providers for the receipt of such wireless spam.”

In addition to damages, the Whisper text class action lawsuit is seeking an injunction requiring Whisper to cease all wireless spam activities, and to award statutory and actual damages to customers who also received unsolicited messages from Whisper, as well as costs and attorneys’ fees. Actual damages would include the cost to receive text messages.

The Whisper class action lawsuit included a description of the so-called “short code” and “long code” text message systems used to send these solicitations. It stated, “One of the newer types of … bulk marketing is delivered via text messages through short codes and long codes. The terms ‘short code’ and ‘long code’ refer to a messaging system that allows cellular telephone subscribers to use their cellular telephones to send and receive short text messages, usually limited to 160 characters … When such a text message call is successfully made, the recipient’s cell phone rings, alerting him or her that a call is being received. … [When McKenna received the message from Whisper, the] ‘from’ field of such transmission was identified cryptically as ‘16502412157,’ which is a special purpose telephone number known as a long code operated by Defendant and its agents.”

Tony McKenna is represented by David C. Parisi and Suzanne Havens Beckman of Parisi & Havens LLP; Evan M. Meyers of McGuire Law, P.C.; David Pastor of Pastor Law Office, LLP; and Preston W. Leonard of Leonard Law Office, LLP.

The Whisper Text Spam Class Action Lawsuit is McKenna v. WhisperText, LLC, Case No. 5:14-cv-00424-PSG in the United States District Court for the Northern District of California.

Federal law prohibits companies from contacting consumers on their cell phones without prior express consent, including sending unsolicited text messages, placing robocalls with an automatic dialer, and other violations. If you were a victim of text spam or other unwanted cell phone contact, you may be eligible for compensation. See if you qualify now at the Text Message Spam, Unwanted Cell Phone Calls TCPA Class Action Lawsuit Settlement Investigation.