{"id":648,"date":"2023-07-10T11:58:33","date_gmt":"2023-07-10T15:58:33","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=648"},"modified":"2025-07-18T12:54:14","modified_gmt":"2025-07-18T16:54:14","slug":"ninth-circuit-finds-article-iii-standing-under-the-tcpa-for-owner-of-registered-phone-with-third-party-user","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2023\/07\/10\/ninth-circuit-finds-article-iii-standing-under-the-tcpa-for-owner-of-registered-phone-with-third-party-user\/","title":{"rendered":"Ninth Circuit Finds Article III Standing Under The TCPA For Owner Of Registered Phone With Third-Party User"},"content":{"rendered":"

\"\"<\/a>By Gerald L. Maatman, Jr. and Jennifer A. Riley<\/b><\/p>\n

Duane Morris Takeaways:\u00a0<\/i><\/b>On June 30, 2023, in Kristen Hall v. Smosh Dot Com, Inc., DBA Smosh, et al., No. 22-16216 (9th Cir. June 30, 2023), the Ninth Circuit reversed\u00a0<\/a>the district court\u2019s dismissal for lack of Article III standing of a class action under the Telephone Consumer Protection Act (the \u201cTCPA\u201d) and remanded the claim for further proceedings.\u00a0 In doing so, the Ninth Circuit held that the owner and subscriber of a phone with a number listed on the Do-Not-Call Registry suffers\u00a0an injury in fact when unsolicited telemarking calls or texts are sent to the number\u00a0even if\u00a0<\/b>the communications\u00a0are intended for or solicited by another individual or someone else\u00a0is using the phone at the time the messages\u00a0are transmitted.\u00a0 In so holding, the Ninth Circuit established that the receipt of unsolicited phone calls or text messages in violation of the TCPA is a \u201cconcrete injury in fact sufficient to confer Article III standing\u201d even if the individual bringing the claim was not the phone\u2019s primary user.\u00a0\u00a0As a result, the ruling is required reading for any corporate counsel dealing with TCPA class action litigation.<\/i><\/p>\n

Case Background<\/u><\/b><\/p>\n

Plaintiff Kristen Hall, a resident of Willis, Texas, was in possession of a cellular phone that was used primarily for residential purposes and, at times, provided to her 13-year old son to use in his free time.\u00a0\u00a0Hall,\u00a0<\/i>No. 22-16216, at 5-6.\u00a0 Plaintiff placed this number on the National Do-Not-Call Registry in order to avoid invasive and irritating solicitation calls and to protect her son from any potential threats.\u00a0\u00a0Id.\u00a0\u00a0<\/i>Plaintiff alleged that she was the owner and subscriber of the cell phone at issue and that she listed its number on the Do-Not-Call Registry.\u00a0\u00a0Id.\u00a0<\/i>at 9.<\/p>\n

On or around November 3, 2019, Defendants – who are digital content creators producing \u201csketch comedy\u201d for an adolescent audience and selling merchandise that relates to their digital content – obtained the personal information for Plaintiff\u2019s son and sent him at least five text messages between December 25, 2019,\u00a0and June 29, 2020.\u00a0\u00a0Id.\u00a0\u00a0<\/i>These texts specifically solicited business and offered discounts on products offered by Defendant Smosh Dot Com, Inc., which Plaintiff alleged was \u201cirritating, exploitative, and invasive\u201d and \u201cprecisely the type of communications she sought to avoid when she registered her number on the Do Not Call [R]egistry.\u201d\u00a0\u00a0Id.\u00a0\u00a0<\/i>Plaintiff\u2019s First Amended Complaint alleged that Defendants violated \u00a7 227(c) of the Telephone Consumer Protection Act (\u201cTCPA\u201d) by sending text messages to numbers listed on the National Do-Not-Call Registry.\u00a0\u00a0Id.\u00a0<\/i><\/p>\n

Defendants moved to dismiss the First Amended Complaint for failure to state a claim and for lack of standing. They argued that Plaintiff lacked Article III standing because she failed to plead that she was the user of the phone or actually received any of the soliciting text messages from Defendants.\u00a0\u00a0Id.\u00a0<\/i>at 6-7.\u00a0 Specifically, Defendants argued that because she provided the phone to her son, Plaintiff was not the actual user of the phone or the actual recipient of the messages and, therefore, did not suffer an injury and was instead attempting to assert the legal right of a third party.\u00a0\u00a0Id.\u00a0<\/i>at 9-10.\u00a0 The district court granted the motion to dismiss on the basis that Plaintiff did not have Article III standing merely because she was the subscriber\/owner of the phone while not addressing any of the merits issues.\u00a0\u00a0Id.\u00a0<\/i>at 7.\u00a0 Plaintiff appealed this ruling.\u00a0\u00a0Id.<\/i><\/p>\n

The Ninth Circuit\u2019s Ruling<\/u><\/b><\/p>\n

The Ninth Circuit reversed the district court\u2019s ruling.<\/p>\n

It held that Plaintiff had Article III standing to bring the claims under the TCPA.\u00a0 The Ninth Circuit noted that it was well established that unsolicited telemarketing phone calls or text messages in violation of the TCPA is a concrete injury in fact that, itself, is enough to confer Article III standing. It cited to\u00a0Van Patten v. Vertical Fitness Grp., LLC,\u00a0<\/i>847 F.3d 1037, 1043 (holding that \u201c[u]nsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients).\u00a0\u00a0Id.\u00a0<\/i>at 8.\u00a0 Importantly, the Ninth Circuit made clear that the relevant question for Article III standing\u00a0is whether Plaintiff suffered a cognizable injury.\u00a0\u00a0Id.\u00a0<\/i>at 12.\u00a0 The Ninth Circuit reasoned that because a violation of the TCPA is a \u201cconcrete injury,\u201d and the Do-Not-Call provisions of the TCPA proscribe unsolicited calls and text messages to phone numbers on the Do-Not-Call Registry, Plaintiff\u2019s allegations that she received unsolicited text messages on a number on the registry\u00a0were\u00a0sufficient to confer standing.\u00a0\u00a0Id.<\/i><\/p>\n

To reach this holding, the Ninth Circuit\u00a0found\u00a0no precedent that the owner of a cell phone also must be the primary or customary user to be injured by unsolicited phone calls or text messages. \u00a0Id.\u00a0<\/i>at 13.\u00a0 The Ninth Circuit\u00a0reasoned that requiring a certain level of phone usage to be a prerequisite for standing would go against Congress\u2019 intention of preventing individuals on the Do-Not-Call Registry from receiving unsolicited text messages.\u00a0\u00a0Id.\u00a0<\/i>\u00a0The Ninth Circuit also opined that this holding would not prevent other users of the phone from bringing claims, as they may also suffer a concrete injury from an unwanted call or text message.\u00a0\u00a0Id.<\/i><\/p>\n

Importantly, the Ninth Circuit did not address the merits of Plaintiff\u2019s claim, and refused to discuss Defendants\u2019 contention that Plaintiff\u2019s son solicited the text messages by signing up for telecommunications through an online form.\u00a0\u00a0Id.\u00a0\u00a0<\/i>Instead, the Ninth Circuit held that, even if Plaintiff\u2019s son solicited the messages, therefore affecting the merits of her claim, Plaintiff still had standing to bring her own claim by the virtue of her status as the subscriber and owner of the phone.\u00a0\u00a0Id.\u00a0<\/i>at 14.\u00a0 The Ninth Circuit additionally did not address the question of whether a subscriber would have Article III standing to litigate a TCPA claim if\u00a0he or she\u00a0authorized a third-party user to provide consent to a telemarketer, leaving that question open for the district court to discuss on remand.\u00a0\u00a0Id.\u00a0<\/i>at 9.<\/p>\n

Key Takeaways<\/u><\/b><\/p>\n

The Ninth Circuit has now established that all that is required for Article III standing under the TCPA is the receipt of unsolicited text messages or phone calls to a number owned or subscribed to by an individual and found on the Do-Not-Call Registry, even if that individual is not the primary user of the phone.<\/p>\n

This ruling\u00a0curtails\u00a0attacks on the pleadings by TCPA defendants, especially with the language included by the Ninth Circuit that standing is \u201cnot exclusive\u201d and numerous subscribers\/users can bring TCPA claims.\u00a0 However, with the Ninth Circuit leaving open the question of whether a subscriber would have standing if\u00a0he or she\u00a0authorized a third-party user to provide consent to receive telemarketing, companies defending TCPA claims still may have a path forward to attacking standing for subscribers of phones on the Do-Not-Call Registry with third-party users.\u00a0 Until then, companies should be cognizant that even if a phone user solicited communications by signing up for those communications, the phone subscriber will still have standing to bring a claim under the TCPA.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr. and Jennifer A. Riley Duane Morris Takeaways:\u00a0On June 30, 2023, in Kristen Hall v. Smosh Dot Com, Inc., DBA Smosh, et al., No. 22-16216 (9th Cir. June 30, 2023), the Ninth Circuit reversed\u00a0the district court\u2019s dismissal for lack of Article III standing of a class action under the Telephone Consumer … <\/p>\n

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