Kristen Hall v. Smosh Dot Com, Inc. ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTEN HALL, No. 22-16216
Plaintiff-Appellant, D.C. No.
v. 2:21-cv-01997-
JAM-AC
SMOSH DOT COM, INC., DBA
Smosh; MYTHICAL
ENTERTAINMENT, LLC, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted May 10, 2023
San Francisco, California
Filed June 30, 2023
Before: Michelle T. Friedland and Mark J. Bennett, Circuit
Judges, and Richard D. Bennett, * Senior District Judge.
Opinion by Judge R. Bennett
*
The Honorable Richard D. Bennett, United States Senior District Judge
for the District of Maryland, sitting by designation.
2 HALL V. SMOSH DOT COM, INC.
SUMMARY **
Telephone Consumer Protection Act / Standing
The panel reversed the district court’s dismissal, for lack
of Article III standing, of an action under the Telephone
Consumer Protection Act and remanded for further
proceedings.
Plaintiff Kristen Hall alleged that defendants sent text
messages to a cell phone number that she had placed on the
National Do-Not-Call Registry and provided to her thirteen-
year-old son. The district court concluded that Hall lacked
Article III standing because she failed to allege that she was
the “actual user” of the phone or the “actual recipient” of the
text messages.
Reversing, the panel held that the owner and subscriber
of a phone with a number listed on the Do-Not-Call Registry
has suffered an injury in fact sufficient to confer Article III
standing when unsolicited telemarketing calls or texts are
sent to the number in alleged violation of the Telephone
Consumer Protection Act. The panel held that 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.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HALL V. SMOSH DOT COM, INC. 3
COUNSEL
Jacob U. Ginsburg (argued), Kimmel & Silverman P.C.,
Ambler, Pennsylvania; Christopher E. Roberts, Butsch
Roberts & Associates LLC, Clayton, Missouri; for Plaintiff-
Appellant.
Jordan Susman (argued) and Margo Arnold, Nolan Heimann
LLP, Encino, California, for Defendants-Appellees.
OPINION
R. BENNETT, Senior District Judge:
Plaintiff-Appellant Kristen Hall alleges that Defendants-
Appellees Smosh Dot Com and Mythical Entertainment,
LLC (collectively, “Defendants”), sent five text messages to
a cell phone number that she had placed on the National Do-
Not-Call Registry and provided to her thirteen-year-old son. 1
Hall filed a putative class action lawsuit alleging violations
of § 227(c) of the Telephone Consumer Protection Act of
1991 (“TCPA”), 47 U.S.C. § 227 et seq., and other claims
that are not at issue in this appeal. The district court
dismissed the First Amended Complaint (“FAC”) for lack of
1
Defendants claim Hall’s son solicited the text messages at issue here,
by opting-in to receive automated promotional messages through a
webform. As discussed below, prior 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.
4 HALL V. SMOSH DOT COM, INC.
Article III standing, reasoning that Hall failed to allege she
was the “actual user” of the phone or the “actual recipient”
of the five text messages at issue. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we reverse and remand.
We have held that the receipt of unsolicited phone calls
or text messages in violation of the TCPA is “a concrete
injury in fact sufficient to confer Article III standing.” Van
Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043
(9th Cir. 2017); see also Wakefield v. ViSalus, Inc., 51 F.4th
1109, 1117–18 (9th Cir. 2022); Chennette v. Porch.com,
Inc., 50 F.4th 1217, 1222 (9th Cir. 2022). That is because
“[u]nsolicited telemarketing phone calls or text messages, by
their nature, invade the privacy and disturb the solitude of
their recipients.” Van Patten, 847 F.3d at 1043. However,
Article III requires a plaintiff to assert her own legal rights,
and to count herself among the injured. Lujan v. Defs. of
Wildlife, 504 U.S. 555, 563 (1992). 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.
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 (“FCC”) 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. See 47 U.S.C. § 227(c); 47 C.F.R.
§ 64.1200(c)(2); see also Van Patten, 847 F.3d at 1043(“The TCPA establishes the substantive right to be free from
certain types of phone calls and texts absent consumer
HALL V. SMOSH DOT COM, INC. 5
consent.”). 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. 2 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.
BACKGROUND
Defendants have been digital content creators for more
than sixteen years. 3 Defendants produce “sketch comedy”
videos and sell merchandise for an adolescent audience.
Since 2016, they have operated a website with an online
store that markets retail apparel and accessories related to
their digital content. Hall alleges that Defendants “derive
substantial profits from collecting, selling and transmitting
consumer data,” and that they “engage in ‘direct’
telemarketing via text message and calls to phone numbers
entered in the website smosh.com.”
At the time of all events relevant to this case, Plaintiff
Kristen Hall was a resident of Willis, Texas, along with her
thirteen-year-old son. Hall alleges that she owned “a cellular
2
We do not decide whether a subscriber would have Article III standing
to litigate a TCPA violation if they authorized a third-party user to
provide consent. There is no allegation here that Hall authorized her son
to opt-in to receive messages from Defendants.
3
Specifically, Smosh is “an online entertainment and merchandise
company geared toward adolescents,” and “Mythical is the parent
company, which owns and operates Smosh.com.” Plaintiff alleges that
at all relevant times, “the two businesses worked together in concert.”
6 HALL V. SMOSH DOT COM, INC.
phone, the number for which was 575-XXX-0669,” and
which was used primarily for residential purposes. She also
alleges that she allowed her son to use this phone “at times,”4
and that she placed its number on the National 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.”
According to the FAC, Defendants obtained personal
information from Hall’s son on or around November 3,
2019. Thereafter, between December 25, 2019, and June 29,
2020, Defendants sent at least five text messages to Hall’s
number soliciting business and offering discounts on Smosh
merchandise. Hall contends that 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.” In pre-suit
communications between the parties’ attorneys, Defendants
claimed that Hall’s son had “opted in” to receive these
communications on November 3, 2019.
Hall filed the operative FAC on December 28, 2021.
Among other claims, the FAC alleged that Defendants
violated § 227(c) of the TCPA and its implementing
regulations by sending text messages to numbers listed on
the National Do-Not-Call Registry. Defendants moved to
dismiss the FAC for failure to state a claim, and for lack of
standing. As relevant to the standing issue, Defendants
4
The extent of Hall’s son’s use of this phone is contested by the parties.
However, because we hold that Hall has standing as the subscriber of the
cell phone that received unsolicited messages in alleged violation of the
TCPA, it is unnecessary to address Defendants’ contentions regarding
which individual was the primary user of the phone.
HALL V. SMOSH DOT COM, INC. 7
argued that Hall lacks Article III standing because she “has
not pleaded that she was the user of the Number or that she
actually received any messages from Defendants.” The
district court granted Defendants’ motion on July 12, 2022,
rejecting the proposition that Hall has Article III standing
“merely as the subscriber/owner of the phone.” Because the
district court concluded that Hall lacked standing, it did not
reach any merits issues, including whether Hall properly
stated a claim under Fed. R. Civ. P. 12(b)(6).
This appeal followed.
STANDARD OF REVIEW
“‘We review de novo dismissal for lack of subject matter
jurisdiction.’” Mecinas v. Hobbs, 30 F.4th 890, 895 (9th Cir.
2022) (quoting Zuress v. Donley, 606 F.3d 1249, 1252 (9th
Cir. 2010)). Standing must be established “‘with the manner
and degree of evidence required at the successive stages of
the litigation.’” Id. at 896–97 (quoting Lujan, 504 U.S. at
561). “When ‘deciding standing at the pleading stage, and
for purposes of ruling on a motion to dismiss for want of
standing, both the trial and reviewing courts must accept as
true all material allegations of the complaint, and must
construe the complaint in favor of the complaining party.’”
Id. at 895–96 (quoting Desert Citizens Against Pollution v.
Bisson, 231 F.3d 1172, 1178 (9th Cir. 2000)).
ANALYSIS
The sole issue before us is whether Hall has Article III
standing to bring claims under the TCPA. Article III of the
United States Constitution limits the jurisdiction of the
federal courts to “Cases” and “Controversies.” U.S. Const.
art. III, § 2. The concept of standing gives meaning to these
constraints by identifying “disputes which are appropriately
8 HALL V. SMOSH DOT COM, INC.
resolved through the judicial process,” Lujan, 504 U.S. at
560 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155
(1990)), and limiting “the category of litigants empowered
to maintain a lawsuit in federal court to seek redress for a
legal wrong,” Spokeo, Inc. v. Robins, 578 U.S. 330, 338
(2016). The “‘irreducible constitutional minimum’” of
Article III standing requires a plaintiff to “have (1) suffered
an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Id. (quoting
Lujan, 504 U.S. at 560–61). Here, the only element of
standing in dispute is whether Hall has suffered an injury in
fact.
We have previously held that the receipt of “[u]nsolicited
telemarketing phone calls or text messages” in violation of
the TCPA is “a concrete injury in fact sufficient to confer
Article III standing.” Van Patten, 847 F.3d at 1043; see also
Chennette, 50 F.4th at 1222; Wakefield, 51 F.4th at 1117–
18. In Van Patten, we explained that “[t]he TCPA
establishes the substantive right to be free from certain types
of phone calls and texts absent consumer consent.” 847 F.3d
at 1043. Through its enactment, “Congress sought to protect
consumers from the unwanted intrusion and nuisance of
unsolicited telemarketing,” and “identified unsolicited
contact as a concrete harm.” Id. That harm is sufficient to
confer standing under Article III, as “[u]nsolicited
telemarketing phone calls or text messages, by their nature,
invade the privacy and disturb the solitude of their
recipients.” Id. Accordingly, “a violation of the TCPA is a
concrete, de facto injury,” and “[a] plaintiff alleging a
violation under the TCPA ‘need not allege any additional
harm beyond the one Congress has identified.’” Id. (quoting
Spokeo, 578 U.S. at 342); accord Wakefield, 51 F.4th at
HALL V. SMOSH DOT COM, INC. 9
1117–18 (“[T]he receipt of telephone calls in alleged
violation of the TCPA is a concrete injury for Article III
purposes.”). 5
Hall alleges that she was the owner and subscriber of the
cell phone at issue, that she listed its number on the Do-Not-
Call Registry “to obtain solitude from invasive and irritating
solicitation calls,” and that Defendants sent five text
messages to that number in a seven-month period. That is a
cognizable injury under Van Patten. However, “the ‘injury
in fact’ test requires more than an injury to a cognizable
interest. It requires that the party seeking review be himself
among the injured.” Lujan, 504 U.S. at 563 (quoting Sierra
Club v. Morton, 405 U.S. 727, 734–35 (1972)); accord
Spokeo, 578 U.S. at 338 (noting that Article III standing
limits “the category of litigants” who may bring suit); Fleck
& Assocs., Inc. v. City of Phoenix, 471 F.3d 1100, 1104 (9th
Cir. 2006) (“[A] litigant must normally assert his own legal
interests rather than those of third parties.” (internal
quotation marks and citation omitted)). Because Hall
5
In so holding, we distinguished a TCPA violation from the type of
procedural deficiency identified in Spokeo:
Unlike in Spokeo, where a violation of a procedural
requirement minimizing reporting inaccuracy may not
cause actual harm or present any material risk of harm,
the telemarketing text messages at issue here, absent
consent, present the precise harm and infringe the
same privacy interests Congress sought to protect in
enacting the TCPA.
Van Patten, 847 F.3d at 1043. Expressed differently, whereas a reporting
violation presents only a speculative risk of harm, the receipt of an
unwanted telemarketing text message or phone call in violation of the
TCPA is inherently an invasion of privacy and a concrete injury.
10 HALL V. SMOSH DOT COM, INC.
provided the phone to her son, Defendants argue that she has
not suffered an injury, as she did not allege that she was “the
actual user of the phone number to which Defendants sent
the text messages [or] the actual recipient of those
messages.” The district court agreed. We now reverse and
hold that the owner and subscriber of a phone number listed
on the Do-Not-Call Registry suffers an injury in fact when
their phone receives text messages in alleged violation of the
TCPA. 6
The National Do-Not-Call Registry is directed at
preserving the privacy of the residential subscriber who
listed their number with the expectation that they would not
be contacted by telemarketers. Section 227(c) of the TCPA,
which authorizes the FCC to create the Registry and forms
the basis of Hall’s claim, addresses “the need to protect
residential telephone subscribers’ privacy rights to avoid
receiving telephone solicitations to which they object.”
47 U.S.C. § 227(c)(1). This provision directs the FCC to
promulgate regulations authorizing “residential subscribers”
to place their phone numbers on the Registry, and provides
a private right of action to redress unsolicited calls to those
6
The parties expend significant energy on whether Hall qualifies as a
“called party” for TCPA purposes. However, the phrase “called party”
appears in § 227(b), governing automated robocalls, not § 227(c),
addressing the Do-Not-Call Registry. Even if that language is relevant to
§ 227(c), any argument about who constitutes a “called party” is relevant
only to the scope of the cause of action created by the TCPA, not to the
question of Article III standing. See Lexmark Int’l, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 128 n.4 (2014) (explaining that this
merits concept has sometimes been referred to as “statutory standing”).
And again, we express no opinion as to whether a subscriber would have
standing if they authorized a third-party to consent to receive messages.
HALL V. SMOSH DOT COM, INC. 11
numbers. 47 U.S.C. § 227(c)(3)(F). Those implementing
regulations provide that:
(c) No person or entity shall initiate any telephone
solicitation to:
...
(2) A residential telephone subscriber
who has registered his or her telephone
number on the national do-not-call
registry of persons who do not wish to
receive telephone solicitations that is
maintained by the Federal Government.
Such do-not-call registrations must be
honored indefinitely, or until the
registration is cancelled by the consumer
or the telephone number is removed by
the database administrator.
47 C.F.R. § 64.1200(c)(2). The telemarketer may raise an
affirmative defense to liability if: (i) the call was placed in
error and certain procedural requirements were met; (ii) the
telemarketer “has obtained the subscriber’s prior express
invitation or permission”; or (iii) the telemarketer “has a
personal relationship with the recipient.” Id.§ 64.1200(c)(2)(i)–(iii). 7
7
These are not the only ways in which a telemarketer may be able to
avoid TCPA liability. For example, under 47 C.F.R. § 64.1200(c)(2)(ii),
it may be sufficient for a telemarketer to show that it obtained the consent
of a phone’s “consumer,” even if the phone’s consumer is someone other
than the phone’s subscriber. Or, in an action brought under 16 C.F.R.
§ 310.4(b)(iii)(B)(1), there may be no liability when the owner of a
telephone number authorizes a third-party to solicit messages. Since we
12 HALL V. SMOSH DOT COM, INC.
As noted above, Defendants argue that Hall has not been
injured because she did not allege that “she was the actual
user of the phone number to which Defendants sent the
messages [or] the actual recipient of those messages.” This
contention boils down to the problematic proposition that the
challenged text messages “were transmitted to ‘[Hall’s]
cellular telephone’ and not [Hall] personally.” But the
relevant question for Article III standing purposes is simply
whether Hall has suffered a cognizable injury. Because “a
violation of the TCPA is a concrete, de facto injury,” Van
Patten, 847 F.3d at 1043, and the Do-Not-Call provisions of
the TCPA proscribe unsolicited calls and text messages to
phone numbers on the Do-Not-Call Registry, Hall’s
allegation that she received unsolicited text messages at a
phone number that she placed on the Do-Not-Call Registry
is sufficient to confer standing. 8 Moreover, although such
allegations are not necessary to show injury in fact, Hall has
alleged that she found Defendants’ texts to be “irritating,
remand all merits questions to the district court, we need not decide the
scope of these sections, who qualifies as a consumer or relevant third-
party, how consent is demonstrated, whether a minor can give such
consent, and, if so, what law a court should look to in evaluating consent.
8
The Do-Not-Call Registry lists numbers, not names. See Federal Trade
Comm’n, Q&A for Telemarketers & Sellers About DNC Provisions in
TSR, https://www.ftc.gov/business-guidance/resources/qa-
telemarketers-sellers-about-dnc-provisions-tsr-0#accessingtheregistry
(“The only consumer information that companies will receive from the
national registry is registrants’ telephone numbers. The numbers will be
sorted and available by area code.”). A telemarketer ordinarily does not
know if consent to receive telephone messages comes from the
subscriber of a particular number or some other user. We recognize that
allowing lawsuits to proceed when the ultimate phone user consents may
cause telemarketers difficulties, even if such consent means that any such
suit will ultimately fail on the merits. But it is up to Congress or
implementing agencies to address any such supposed difficulties.
HALL V. SMOSH DOT COM, INC. 13
exploitative and invasive.” These allegations suggest that
Hall has suffered the precise sort of nuisance and privacy
deprivation the TCPA was enacted to address.
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. See Chennette, 50 F.4th at
1222. 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. Cf. Krakauer v. Dish Network, LLC, 925 F.3d 643,
647 (4th Cir. 2019) (“If a wife, as the subscriber, lists a home
telephone number on the Do-Not-Call registry, but her
husband happens to be the one who receives the improper
calls . . . [b]oth the wife and the husband can suffer the harm
that Congress sought to deter.”).
Finally, as noted above, Defendants claim that Hall’s son
solicited the text messages by signing up through an online
form. As relevant here, a telemarketer may contact a number
listed on the National Do-Not-Call Registry if the
telemarketer “has obtained the subscriber’s prior express
invitation or permission,” as “evidenced by a signed, written
agreement between the consumer and seller which states that
the consumer agrees to be contacted by this seller and
includes the telephone number to which the calls may be
placed.” 47 C.F.R. § 64.1200(c)(2)(ii). Determining whether
14 HALL V. SMOSH DOT COM, INC.
such consent was provided “requires an analysis of the
merits of [Hall’s] TCPA claim,” and has no bearing on the
question of Article III standing. Wakefield, 51 F.4th at 1118
n.7. Accordingly, we hold that even if Hall’s son solicited
messages from the Defendants, Hall has standing to bring
her TCPA claim by virtue of her status as the subscriber and
owner of the phone, and her allegation that the phone
received unsolicited text messages in violation of the
TCPA. 9 Whether her son in fact solicited the messages, and
whether his consent would be legally sufficient under the
TCPA, are relevant only to the merits of Hall’s claim, not to
her standing to litigate it.
For the reasons discussed above, we hold that that the
owner and subscriber of a cell phone listed on the Do-Not-
Call Registry has Article III standing to bring claims under
the TCPA for unsolicited calls or text messages directed to
its number. Hall alleges that Defendants texted a phone
number that she owned and subscribed to, contrary to the
precise privacy expectations she vindicated by placing her
number on the Do-Not-Call Registry. Nothing more is
required. Cf. Van Patten, 847 F.3d at 1043 (“A plaintiff
alleging a violation under the TCPA ‘need not allege any
additional harm beyond the one Congress has identified.’”
(quoting Spokeo, 578 U.S. at 342)). The issues of whether
Hall’s son consented to receive messages, and whether such
consent would be sufficient to satisfy the TCPA, are reserved
for the district court on remand. Accordingly, we reverse the
9
We do not decide whether a subscriber would have Article III standing
to litigate a TCPA violation if they authorized a third-party user to
provide consent. There is no allegation here that Hall authorized her son
to opt-in to receive messages from Defendants.
HALL V. SMOSH DOT COM, INC. 15
dismissal of the FAC for lack of Article III standing, and
remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.