THE WAIT CONTINUES: Standing Punt Denies TCPAWorld Much Needed Ruling on Minor’s Consent

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Folks might recall the story I wrote a while back regarding a new theory the Plaintiff’s bar was floating–minor’s cannot give consent. So calling a cell phone relying on the consent of an underage person is akin to statutory rape of a cell phone.

STATUTORY RAPE OF A CELL PHONE?: New Class Action Alleges that Minors Can’t Give Legal TCPA Consent to Be Called on the Their Cell Phones

The issue is actually a fantastically interesting one and to date there is precisely zero case law on the issue.

Well this Smosh case just resolved via a motion to dismiss but in a way that denied us all a ruling on the critical substantive issue.

The Defendant filed a motion to dismiss arguing that a minor can consent just fine–way to tee up the critical (and common) substantive issue pre-certification (losing this would have been a disaster for Smosh–but also included a paragraph to the effect that the Plaintiff lacked standing to sue because her son used the phone and not her.

Now interestingly there is a pretty good body of law to the effect that a cell phone subscriber has standing to sue, so this should have been a pretty straightforward argument to defeat. But the Plaintiff–perhaps rightly–was focused on the minor consent issue and did not submit much opposition on the standing issue.

The result?

The Court finds the plaintiff–the mom of the kid and the one who actually bought and paid for the phone–lacks standing to sue for the text messages at issue.

So case dismissed.

I presume the kid will now file suit in his own name. And we’ll have to wait and see the outcome of the ultimate substantive issue.

Ruling here: Smosh Ruling

We’ll chat this through at the Summit–for those of you attending.

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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  1. In California, non-adult individuals who have signed binding arbitration agreements have not been forced into arbitration, and some matters have been granted class. (Central Coast Restaurants, Case No. 3:18-cv-02370-RS, ND Ca). (see ECF 93). So there is case law about whether someone can enter into a contract as a teen-ager. It’s just not TCPA related. (“Plaintiff’s success in challenging her arbitration agreement, and that her minority afforded her arguments to disaffirm the arbitration agreement in addition to class-wide arguments against enforceability, does not defeat her ability to lead the proposed class” (ECF 93)

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