Hall v. Smosh Dot Com, Inc. – Ninth Circuit Holds Mother Has Article III Standing To Sue Under TCPA Based On Text Messages Received On A Phone Used By Her Son

Does a mother have Article III standing to sue under the Telephone Consumer Protection Act based on advertising text messages received on a cell phone that was being used by her son?  A panel of the Ninth Circuit answered “yes” in Hall v. Smosh Dot Com, Inc., _F 4th _, 2023 U.S. App. LEXIS 16623 (9th Cir. 2023), finding the mother had suffered “injury in fact” because she was the owner and subscriber of the phone and the number had been placed on the National Do-Not-Call Registry. 

The defendant in Hall sent five text messages to a cellular phone that plaintiff had placed on the National Do-Not-Call Registry and then gave to her thirteen-year-old son. See Hall, 2023 U.S.App LEXIS 16623, at *2. The district court dismissed the putative TCPA class filed by Hall for lack of Article III standing, because plaintiff had not alleged she was the “actual user” of the phone or the “actual recipient” of the text messages. Id. at *3. The Ninth Circuit reversed.

The Ninth Circuit pointed out that its prior decisions had recognized that the recipient of an unwanted phone call or text message sent in violation of the TCPA suffers sufficient injury to confer standing, because "[u]nsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients.” Id. (citation omitted). Plaintiff in Hall was not a recipient of the text messages, however, and establishing Article III standing requires the plaintiff “to assert her own legal rights, and to count herself among the injured.” Id. The Hall Court thus framed the issue as follows: “This case presents the question whether the owner and subscriber of a phone with a number listed on the Do-Not-Call Registry, who may not be the phone's primary user, suffers an injury in fact when the phone receives unsolicited text messages.” Id. at *3. 

The Hall Court reasoned that the allegations of injury were sufficient to confer Article III standing, because when Congress instructed the FCC to create the National Do-Not-Call Registry, it “granted residential phone subscribers the right to create a private line, free from unsolicited calls and intrusive texts.” Id. at *4. According to the Court, “The owner and subscriber of the phone suffers a concrete, de facto injury when their right to be free from such communications is violated—even if the communications are intended for or solicited by another individual, and even if someone else is using the phone at the time the messages are transmitted. 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.” Id. 

It appeared important to the Hall Court that the recipient of the messages was plaintiff’s thirteen year-old son, and that plaintiff alleged she had placed the telephone number on the Do-Not-Call Registry “to obtain solitude from invasive and irritating solicitation calls and to protect her minor son from being inundated with advertisers and data-miners." Id. at *5. Thus, when Defendant had sent at least “five text messages to Hall's number soliciting business and offering discounts on Smosh merchandise” the plaintiff alleged she "found those solicitation messages to be irritating, exploitative and invasive," and that they "were precisely the type of communications she sought to avoid when she registered her number on the Do Not Call [R]egistry." Id. 

Despite the broad standing language used in the opinion, would the outcome of Hall have been the same if, for example, the recipient of the text messages had been plaintiff’s 28-year old adult son, or if the recipient had been plaintiff’s adult friend who had borrowed the phone for day?  It’s unclear where the district courts will draw the line when applying Hall, or whether the reasoning used in Hall can be neatly applied outside of the specific facts of the case. 

Hall v. Smosh Dot Com, Inc.. et al., No. 22-16216 (9th Cir. Jun. 30, 2023)