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.
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 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.