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