Monday, July 17, 2023

FYI: 9th Cir Holds Phone "Subscriber" Who Was Not the Phone's User Had Article III Standing to Assert TCPA Claim

The U.S. Court of Appeals for the Ninth Circuit recently held that the owner and subscriber of a phone number listed on the Do-Not-Call Registry suffered an injury in fact sufficient to confer Article III standing when unwanted text messages were sent to the number in alleged violation of the TCPA, even when the owner and subscriber was not the actual user of the phone.


A copy of the opinion is available at:  Link to Opinion


Plaintiff filed a putative class action lawsuit alleging that various defendants violated the federal Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227 et seq by sending her five (5) unwanted text messages. Plaintiff's cell phone number was registered on the Do Not Call Registry. Plaintiff further alleged that her minor son also utilized and accessed the cell phone.


In her complaint, Plaintiff alleged that the messages sent by Defendants were "irritating, exploitative and invasive," and that they were the type of communications she sought to avoid when she registered her number on the Do Not Call Registry. Plaintiff's operative amended complaint alleged that the 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.


The defendants moved to dismiss the amended complaint for failure to state a claim, and for lack of Article III standing. The trial court granted the defendants' motion to dismiss on the issue of standing. Because the trial court concluded that Plaintiff lacked standing, it did not reach any merits issues, including whether Plaintiff properly stated a claim as a matter of law. This appeal followed.


The sole issue on appeal was whether the Plaintiff had Article III standing under the TCPA. As you may recall, 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."  Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).  Here, the Appellate Court's analysis solely focused on whether or not Plaintiff suffered an injury in fact.


The Ninth Circuit noted that it has previously held that the receipt of "unsolicited telemarketing phone calls or text messages" in violation of the TCPA is "a concrete injury in fact sufficient to confer Article III standing." The Appellate Court acknowledged that Plaintiff suffered a cognizable injury because Plaintiff was the owner and subscriber of the cell phone at issue, she listed its number on the Do-Not Call Registry to avoid invasive and irritating solicitation calls, and the defendants sent five text messages to that number in a seven-month period.


However, in order to constitute an actual 'injury in fact' the aggrieved party seeking review must himself be among the injured." Lujan, 504 U.S. at 563 (quoting Sierra Club v. Morton, 405 U.S. 727, 734–35 (1972)).


Here, the defendants alleged that Plaintiff's thirteen year old son voluntarily opted in to receive the communications from the defendants. The defendants further argued that Plaintiff only provided the phone to her son and that she has not suffered an injury because she did not allege that she was the actual user or recipient of Defendants' text messages. The trial court agreed with the defendants' argument, but the Court of Appeals did not.


Instead, the Ninth Circuit ultimately held that the owner and subscriber of a phone number listed on the Do-Not-Call Registry suffers an injury in fact when his or her phone receives text messages in alleged violation of the TCPA.


In support of its ruling, the Ninth Circuit noted that Plaintiff's claims derive from her registration on the national Do-Not-Call Registry. Specifically, 47 U.S.C. § 227(c)(1) 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.


The Appellate Court further noted that nothing in its 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 in order to be injured by unsolicited phone calls or text messages sent to its number in violation of the TCPA.


Despite the defendants' arguments that Plaintiff's son solicited the text messages by signing up through an online form and was the actual recipient of the message, the Appellate Court held that while this may be relevant to the merits of the claim, it is not relevant to the inquiry of whether the Plaintiff has Article III standing.  Determining whether such consent was provided "requires an analysis of the merits of Plaintiff's TCPA claim," and has no bearing on the question of Article III standing. Wakefield v. ViSalus, Inc., 51 F.4th at 1118 (9th Cir. 2022). As a result, the Ninth Circuit further held that whether Plaintiff's son solicited the messages or consented to the messages are legally are relevant only to the merits of Plaintiff's claim, not to her standing.


Accordingly, the Ninth Circuit reversed the trial court's dismissal on Plaintiff's complaint for lack of Article III standing, and remanded for further proceedings.




Ralph T. Wutscher
Maurice Wutscher LLP
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