Ever since the Supreme Court confirmed that the TCPA’s autodialer restrictions apply only to devices that generate numbers randomly or sequentially, the plaintiffs’ bar has been digging deep for new theories of liability to fill the void. One example of that is Hall v. Smosh Dot Com, in which the plaintiff posits that minors cannot provide consent for purposes of the TCPA, and as a result that calls to minors with DNC-registered numbers necessarily violate the statute. That theory is hard to square with both tort law (which tells us that minors consent to more intrusive things all the time) and contract law (which tells us that contracts with minors are voidable rather than void). But the Ninth Circuit recently handed Hall a procedural win in the case—albeit one that should end up being Pyrrhic.
The case arises from five text messages sent over the course of seven months. Undeterred by the fact that her teenage son had requested the messages, the Plaintiff filed suit—in a class action, of course—under the TCPA’s DNC provisions. See 47 U.S.C. § 227(c)(5). The trial court dismissed the case for lack of Article III standing, finding that the Plaintiff had failed to allege that she was either the “actual user” of the phone or the “actual recipient” of the messages. The Plaintiff appealed, arguing that she could have Article III standing even if she was neither of those things. The Ninth Circuit has now agreed, reversed the trial court, and remanded for further proceedings consistent with its opinion.
In doing so, the Ninth Circuit 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 when unsolicited telemarketing calls or texts are sent to the number in putative violation of the TCPA,” even if that person was not “the phone’s primary user” at the time of the calls or texts. That is so, the court reasoned, because “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.”
In support of that reasoning, the Ninth Circuit cited prior decisions holding that “[r]eceiving even one unsolicited, automated text message from [a telemarketer] is the precise harm identified by Congress.” But even if that were true, it has little relevance to the Plaintiff in this case, who hadn’t “received” anything at all.
In any event, the Ninth Circuit was careful to limit its holding to the question of standing: “[P]rior 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 of the phone that received the messages. Whether he in fact solicited the messages, and whether his consent would be legally sufficient under the TCPA, are inquiries reserved for the merits.”
The case now returns to the trial court for resolution—and, one would think, rejection—of the merits of the claim. Although this theory of liability has received much attention in recent weeks, there are several compelling legal and procedural defenses.
First, it is wrong to suggest that minors categorically cannot consent to receiving calls or texts. After all, minors consent to all sorts of things—including things that are far more intrusive than a call or text. And tort law has long recognized that minors can consent to such things so long as they can appreciate the consequence of doing so. For better or worse, minors with cellphones are well aware of what it means to receive a call or text.
Second, if the plaintiffs’ bar thinks TCPA consent should be viewed through the lens of contract law rather than tort law, that still ignores that contracts with minors are voidable rather than void. That doctrine acts as a shield, not a sword. Filing suit over messages that were received before a minor voided a contract would turn literally centuries of contract law on its head.
Finally, even if this theory of liability survives dismissal, it should make the class-certification calculus even more challenging for plaintiffs than it already is, as it introduces new variables that differ from state to state and minor to minor. Even if an individual claim could somehow survive based on this new theory, the odds of that claim being certified seem slim at best.
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