A July 2024 class-action complaint alleges Whaleco Inc., Temu’s operator, sent marketing texts to a consumer whose number was on the National Do Not Call Registry. Review the allegations, proposed class, legal claims, and requested relief.
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On July 3, 2024, Phyllis King filed a putative class-action complaint against Whaleco Inc. in the United States District Court for the District of Massachusetts. The case is identified as King v. Whaleco Inc., Case No. 1:24-cv-11720-JEK. The complaint invokes the Telephone Consumer Protection Act (TCPA), specifically 47 U.S.C. § 227(c)(5), and seeks declaratory and permanent injunctive relief, statutory damages, and a jury trial.
The complaint alleges that Whaleco, the company behind the Temu online marketplace, sent marketing text messages to King’s residential cellular telephone in April 2024 even though she had registered the number on the National Do Not Call Registry in 2022. King alleges that she had not given Whaleco prior express written consent to send telemarketing messages and had never provided the company with her telephone number.
TCPAWorld reported the filing on July 5, 2024, under the headline “Whale Hunting: Temu Facing Another TCPA Class Action After Its Arbitration Clause Deemed Unenforceable.” The report summarized the lawsuit as alleging that Temu sent texts to a number on the national Do Not Call list and noted the complaint’s allegation that at least 100 other people had received similar messages. The complaint itself describes the proposed class as likely numbering in the hundreds. These are allegations and estimates, not findings that the court has made.
Source attribution: The case details below are drawn from the complaint filed by King. The July 5, 2024, TCPAWorld report is separately identified where its commentary or summary is discussed.
Plaintiff: Phyllis King, an individual who the complaint says resides in Smyrna, Kent County, Delaware.
Defendant: Whaleco Inc., described in the complaint as a for-profit Delaware corporation with its principal place of business at 31 Saint James Avenue, Suite 355, Boston, Massachusetts 02116. The complaint identifies Whaleco as an e-commerce company founded in Boston in 2022.
Court: United States District Court for the District of Massachusetts.
The complaint asserts federal-question jurisdiction because King brings claims under the TCPA. It also alleges that the court has general jurisdiction over Whaleco because the company’s principal place of business is in the district, and specific jurisdiction because the telemarketing calls or texts at issue were allegedly sent from within the district. The complaint asserts that the venue is proper because Whaleco resides in the district and is subject to the court’s personal jurisdiction there.
These jurisdictional and venue statements are the plaintiff’s allegations in the filing; they should not be described as judicial findings unless supported by a later court order.
The complaint’s factual allegations focus on four text messages allegedly received over two days.
King alleges that:
The complaint characterizes the messages as marketing communications intended to sell Whaleco’s products. It alleges that Whaleco is directly liable because it was the entity that sent the texts.
The complaint’s description of the messages is not, by itself, a finding that Whaleco sent unlawful messages. The allegations would need to be tested through the litigation process, including any dispute over the messages, the recipient’s registry status, consent, and the applicable law.
The complaint explains the National Do Not Call Registry as a mechanism through which consumers can register their telephone numbers to indicate that they do not wish to receive telephone solicitations at those numbers.
Citing 47 U.S.C. § 227(c) and 47 C.F.R. § 64.1200(c)(2), the complaint states that the TCPA and its implementing regulations restrict telephone solicitations to residential subscribers whose numbers are on the national registry. It also states that registry entries generally remain in effect unless the consumer cancels the registration or the number is removed by the database administrator.
The complaint further cites Federal Communications Commission guidance concerning written consent for telemarketing calls. It asserts that the relevant disclosure must be clear, unambiguous, and conspicuous, and that the consumer must take an affirmative written action to authorize covered telemarketing communications.
King’s theory is that Whaleco sent multiple marketing texts to a residential number that had been listed on the registry for more than 31 days, without the required consent. The complaint alleges that this conduct violated the TCPA and the regulation at 47 C.F.R. § 64.1200(c)(2).
The filing describes the alleged conduct as involving more than one telemarketing call or text within a 12-month period. It claims that the messages were sent negligently, knowingly, and/or willfully. Those descriptions state the plaintiff’s legal theory; they do not establish the defendant’s state of mind.
King seeks to represent a nationwide class under Federal Rule of Civil Procedure 23(b)(2) or 23(b)(3). The proposed class is titled the “National Do-Not-Call Registry Class.”
As proposed in the complaint, the class would include persons in the United States who:
The complaint says King is a member of the proposed class. The definition is expressly subject to amendment as appropriate, and the court would have to determine whether the proposed class satisfies the applicable certification requirements.
The complaint proposes excluding:
These exclusions are part of King’s proposed class definition, not a court-approved class definition.
The complaint argues that the proposed class is sufficiently large and that common issues predominate over individual issues.
King alleges that the proposed class likely contains at least hundreds of people because telemarketing calls and text messages are sent on a large scale. The complaint contends that joining every potential class member in one individual lawsuit would be impracticable.
The complaint identifies common questions that it says can be resolved for the class, including:
King alleges that her claims are typical because they arise from the same alleged course of conduct and rely on the same legal and remedial theories as the proposed class claims.
She also asserts that her interests do not conflict with those of other proposed class members and that she can fairly and adequately represent them. The complaint states that her attorneys are skilled and experienced in class actions, including TCPA class actions.
The complaint argues that the proposed class can be identified through telephone records and telephone-number databases, including records maintained by Whaleco.
It also argues that class treatment would avoid numerous similar lawsuits, conserve judicial resources, promote consistent adjudication, provide a forum for people whose individual claims may be too small to pursue separately, and deter unlawful conduct. King contends that class-wide relief is necessary and that identifying class members would be the principal individualized issue.
These arguments are the plaintiff’s proposed basis for class certification. Filing a class-action complaint does not mean a class has been certified.
King alleges that she and other proposed class members experienced invasions of privacy and were subjected to annoying or harassing communications that constituted a nuisance.
The complaint also claims that the calls or texts:
The complaint uses these asserted harms to support its requests for statutory damages and injunctive relief. Whether any particular recipient suffered legally compensable harm, and whether the proposed class can establish such harm on a class-wide basis, are matters for the litigation.
The complaint contains two causes of action, both titled as TCPA claims and both relying on 47 U.S.C. § 227(c)(5) and 47 C.F.R. § 64.1200(c). Each incorporates the earlier factual allegations and is brought on behalf of King and the proposed National Do-Not-Call Registry Class.
The first count alleges that Whaleco made telemarketing calls and sent text messages, other than for emergency purposes, to King and proposed class members despite their numbers being listed on the National Do Not Call Registry.
It alleges that Whaleco’s violations were willful or knowing. On that basis, King seeks treble damages of up to $1,500 for each allegedly unlawful call or text message, relying on 47 U.S.C. § 227(c)(5).
The first count also seeks an injunction prohibiting future telemarketing calls and text messages to numbers on the registry, except for emergency purposes, as well as attorneys’ fees and costs.
The second count repeats the same core allegations that Whaleco sent telemarketing calls or texts to numbers on the registry, except for emergency purposes, in violation of the cited statute and regulation.
This count seeks $500 in statutory damages for each allegedly unlawful call or text message. It also requests injunctive relief against future telemarketing communications to registered numbers and attorneys’ fees and costs.
The complaint pleads these as separate counts. The amounts are requested remedies, not damages awarded by the court. The filing does not establish that King or any proposed class member is entitled to either amount.
In its prayer for relief, King asks the court to:
King also demands a jury trial on all issues that may be tried to a jury.
TCPAWorld reported the lawsuit on July 5, 2024. The report identified Whaleco as Temu’s corporate name and described the case as another TCPA class action involving alleged violations of the National Do Not Call Registry rules.
The report summarized King’s allegation that she received texts without consent despite being on the registry and stated that she alleged at least 100 other individuals received similar texts. It also referred to an earlier ruling concerning Temu’s arbitration clause and suggested that the absence of that clause as a defense could leave Temu to litigate the dispute in court.
That statement should be understood as TCPAWorld’s commentary at the time of publication, not as a conclusion established by the complaint itself. The complaint provided here does not set out the full procedural history or establish the effect of any separate arbitration ruling on this particular case.
The complaint documents that King filed claims against Whaleco and explains the legal and factual basis she put forward. It does not establish that the allegations are true, that Whaleco violated the TCPA, that a nationwide class was certified, or that damages or injunctive relief were awarded.
The key issues raised by the pleading include whether the messages were sent as alleged, whether the relevant telephone number was on the registry at the required time, whether any legally sufficient consent or other defense applies, whether the alleged communications satisfy the governing TCPA requirements, and whether the proposed class meets Rule 23.
Any account of the case’s outcome should be based on subsequent court records rather than inferred from the complaint or the contemporaneous TCPAWorld report.
The lawsuit alleges that Whaleco Inc., which operates Temu, sent four marketing text messages to Phyllis King’s residential cellular telephone on April 9 and April 10, 2024, even though her number had been listed on the National Do Not Call Registry since 2022.
Phyllis King filed the complaint individually and on behalf of a proposed nationwide class. The complaint was filed on July 3, 2024, in the U.S. District Court for the District of Massachusetts.
King alleges that she received four marketing text messages from short code 52927 over April 9 and 10, 2024. She alleges that the messages promoted Temu deals and included links to Whaleco’s website.
The complaint invokes the Telephone Consumer Protection Act, particularly 47 U.S.C. § 227(c)(5), and the related regulation at 47 C.F.R. § 64.1200(c)(2), concerning telephone solicitations to numbers listed on the National Do Not Call Registry.
King proposes a nationwide class of people whose residential telephone numbers were on the National Do Not Call Registry and who allegedly received at least two Whaleco telemarketing calls or texts within a 12-month period, at least 31 days after registration, during the proposed class period.
The complaint seeks statutory damages of $500 per allegedly unlawful call or text under its second count and treble damages of up to $1,500 per communication under its first count, which alleges knowing or willful violations. These are requested amounts, not an award.
The complaint itself contains allegations and requests for relief. It is not a judicial finding of liability. Any statement about the case’s later status or outcome should be verified against subsequent court records.
This article is for informational purposes only and is based on the complaint and the cited TCPAWorld report. The complaint’s statements are allegations, not established facts or a court determination. This article is not legal advice. Readers should consult the court docket and qualified counsel for legal questions or updates concerning the case.
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