Kristen Hall v. Smosh Dot Com, Inc.
72 F.4th 983
9th Cir.2023Background
- Plaintiff Kristen Hall was the owner/subscriber of a cell number she placed on the National Do‑Not‑Call Registry and that she occasionally allowed her 13‑year‑old son to use.
- Defendants (Smosh Dot Com and Mythical Entertainment) sent at least five promotional text messages to that number between Dec 2019 and June 2020.
- Defendants claim Hall’s son opted‑in via a webform; Hall alleges the texts were unsolicited, invasive, and violated 47 U.S.C. § 227(c).
- Hall sued under the TCPA; the district court dismissed the complaint for lack of Article III standing because Hall was not alleged to be the phone’s actual user or actual recipient.
- The Ninth Circuit reversed, holding that a phone owner/subscriber who listed a number on the Do‑Not‑Call Registry suffers a concrete injury in fact when unsolicited telemarketing texts/calls are sent to that number; merits issues (e.g., consent) were reserved for remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing to sue under TCPA §227(c) when the subscriber owns a DNC‑registered number but is not the actual user/recipient | Hall: as the subscriber/owner who registered the number on the DNC, she was injured when unsolicited texts were sent to that number | Defs: Hall lacks injury because she did not allege she personally received the messages or was the phone’s user; the son was the recipient and may have consented | Court: Owner/subscriber of a DNC‑registered number has Article III standing; receipt of unsolicited texts to that number is a concrete injury; consent/solicitation are merits issues on remand |
Key Cases Cited
- Van Patten v. Vertical Fitness Grp., 847 F.3d 1037 (9th Cir. 2017) (holding unsolicited telemarketing calls/texts are a concrete injury under the TCPA)
- Chennette v. Porch.com, Inc., 50 F.4th 1217 (9th Cir. 2022) (reaffirming that receipt of unsolicited texts is a concrete injury)
- Wakefield v. ViSalus, Inc., 51 F.4th 1109 (9th Cir. 2022) (same)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (limits on Article III standing and need for concrete injury)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires plaintiff to be among the injured)
- Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) (distinguishing Article III standing from statutory/merits limits)
- Krakauer v. Dish Network, LLC, 925 F.3d 643 (4th Cir. 2019) (both subscriber and actual recipient can suffer the TCPA harm)