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Ninth Circuit:
Mother Has Standing to Sue Under TCPA Over Unwanted Texts Received by Son
Her Ownership of Phone Enables Her to Maintain Action, Opinion Says, Reversing Dismissal
By a MetNews Staff Writer
A mother who gave her son a cell phone and registered the number with the National Do-Not-Call Registry has standing to bring a putative class action against companies that sent text messages to that number, the Ninth U.S. Circuit Court of Appeals held on Friday.
The opinion reinstates an action brought by Kristen Hall under the Telephone Consumer Protection Act of 1991 (“TCPA”) against Smosh Dot Com, a Glendale-based online entertainment company, and its parent, and Mythical Entertainment, LLC. It reverses a dismissal of her action by District Court Judge John A. Mendez of the Eastern District of California.
Smosh argued that Hall lacks standing because she “has not pleaded that she was the user of the Number or that she actually received any messages from Defendants,” and Mendez ordered dismissal on July 12, 2022, holding that Hall had no standing “merely as the subscriber/owner of the phone.”
Opinion Reversing Dismissal
Senior District Court Judge Richard D. Bennett of the District of Maryland, sitting by designation, authored the opinion reversing the dismissal. He said:
“We now hold that the owner and subscriber of a phone with a number listed on the Do-Not-Call Registry has suffered an injury in fact when unsolicited telemarketing calls or texts are sent to the number in putative violation of the TCPA. In instructing the Federal Communications Commission…to adopt a National Do-Not-Call Registry, Congress granted residential phone subscribers the right to create a private line, free from unsolicited calls and intrusive texts.”
He continued:
“As Hall alleges that she was the owner and subscriber of a cell phone number on the Do-Not-Call Registry that received unsolicited text messages in violation of the TCPA, she has stated an injury in fact sufficient to satisfy Article III.”
Standing ‘Not Exclusive’
Bennett went on to say:
“Nothing in our precedent or the text of the TCPA suggests that the owner of a cell phone must also be the phone’s primary or customary user to be injured by unsolicited phone calls or text messages sent to its number in violation of the TCPA. Requiring a heighted level of phone use as a prerequisite for standing is contrary to our prior recognition that ‘[r]eceiving even one unsolicited, automated text message from [a telemarketer] is the precise harm identified by Congress’ and sufficient to state an injury in fact under Article III….Moreover, standing is not exclusive. The fact that the primary or customary user of a phone may suffer a concrete injury from an unwanted call or text message does not preclude the phone’s owner and subscriber from suffering the same.” Five text messages from Smosh had been received. Hall labeled them “irritating, exploitative and invasive.”
Smosh argued in its appellate brief, signed by Jordan Susman of the Encino firm of Nolan Heimann LLP:
“While Plaintiff may have given her son a cell phone with the expectation that he would only use it to stay in contact with his parents, he, like many teenagers, also used his cell phone for his own personal activities, including providing the Number to Defendants in order to receive promotional text messages from them….Consequently, Plaintiff’s son later received promotional messages and never opted out of receiving such messages….
“At some point, Plaintiff learned of these messages. She did not respond to Defendants’ messages with ‘STOP,’ which would have removed the Number from the Defendants’ text message list as specifically set forth in the Defendants’ Terms and Conditions that were accepted by Appellee-Plaintiff’s son when he opted into receiving such messages….Instead, Plaintiff hired a law firm that bragged it can turn unwanted communications into “significant monetary compensation” and sought to turn the five text messages that were solicited by her son into ‘significant monetary compensation.’”
Bennett responded in a footnote:
“[P]rior express consent is relevant to the merits of a TCPA claim, not to Article III standing. Accordingly, we hold that even if Hall’s son solicited messages from the Defendants, Hall has standing to litigate her TCPA claim as the subscriber and owner of the phone that received the messages. Whether he in fact solicited the messages, and whether his consent would be legally sufficient under the TCPA, are inquiries reserved for the merits.”
The case is Hall v Smosh Dot Com Inc., 22-16216.
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