A federal appeals panel has revived a Texas woman’s lawsuit over unwanted text messages to her son’s phone, finding that although the 13-year-old consented to receipt of communication, the mother who owned the phone and number did not give permission.
Kristen Hall, of Willis, Texas, sued Mythical Entertainment , which operates Smosh Dot Com, in December 2021, saying the companies shouldn’t have texted a number she placed on the National Do-Not-Call Registry. Her putative class action alleged violations of the Telephone Consumer Protection Act, but U.S. District Judge John Mendez dismissed the complaint in July 2022 for lack of standing as Hall wasn’t the “actual user” of the phone or the “actual recipient” of the five text messages sent over seven months.
Hall challenged that dismissal before the U.S. Ninth Circuit Appellate Court. Judge Richard Bennett wrote the panel’s opinion, issued June 30; Judges Michelle Friedland and Mark Bennett concurred. Richard Bennett is a U.S. senior district judge from Maryland who sat on the appeals panel by designation.
In her complaint, Hall said the phone number in question was primarily used for residential purposes and she allowed her son to use it at times. She alleged she registered the number with the federal block list “to obtain solitude from invasive and irritating solicitation calls and to protect her minor son from being inundated with advertisers and data-miners.” Smosh is, according to court filings, “an online entertainment and merchandise company geared toward adolescents.”
Bennett said Judge Mendez didn’t analyze any of the merits of Hall’s complaint and noted the appeals panel didn’t consider whether a plaintiff could have standing if a defendant could show they granted permission to a third-party — like a minor child — to provide consent to receive messages. Rather, “the sole issue” is Hall’s standing to bring a TCPA complaint.
“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,” Bennett wrote. And because Hall alleged she owned the number that received text messages to which she personally did not consent, she has standing to sue in federal court.
“Moreover, although such allegations are not necessary to show injury in fact, Hall has alleged that she found defendants’ texts to be ‘irritating, exploitative and invasive,’ ” Bennett wrote. “These allegations suggest that Hall has suffered the precise sort of nuisance and privacy deprivation the TCPA was enacted to address.”
The panel further said there was nothing in Ninth Circuit precedent or the TCPA’s statutory language suggesting “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,” Bennett wrote. “Requiring a heighted level of phone use as a prerequisite for standing is contrary to our prior recognition that ‘receiving even one unsolicited, automated text message from (a telemarketer) is the precise harm identified by Congress,’ and sufficient to state an injury in fact.”
The panel drew a comparison to a home phone landline number shared by a married couple and noted that even if only one spouse received an unwanted call while the other was the registered account owner, both could be considered to have suffered legal harm.
Although Smosh and Mythical argued Hall’s son provided the required consent, the panel said that factual question doesn’t have a bearing on the sole question on appeal. It reversed Judge Mendez’ ruling and remanded the complaint for further proceedings.
“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,” Bennett wrote.
Hall is represented by Jacob Ginsburg, of Kimmel & Silverman, of Ambler, Pa.; and Christopher Roberts, of Butsch Roberts & Associates, of Clayton, Mo.
Smosh and Mythical are represented by Jordan Susman and Margo Arnold, of Nolan Heimann LLP, of Encino, Calif.