Law360 reported on a lawsuit in California federal court focused on the issue of whether minors can provide valid consent for companies to call or text their cellphones, such as automated marketing messages. Business litigation partner Mike Daly spoke to the publication about the importance of this case under the Telephone Consumer Protection Act (TCPA).
Daly stated that it’s not a foregone conclusion that courts will back these claims. “The plaintiffs’ bar suffered a decisive defeat this year when the Supreme Court confirmed that the TCPA’s autodialer restrictions apply only to devices that generate numbers randomly or sequentially,” he noted, referring to the ruling in Facebook v. Duguid. “It should come as no surprise that they are digging deep for a tide-turning tactic, but this one should yield at most a Pyrrhic victory — and even that seems unlikely.”
Daly also argued that it’s “wrong to suggest that minors cannot consent to receiving calls or texts” because those under 18 “consent to all sorts of things, including things that are far more intrusive than a call or text.” He added, “The 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 who have their own cellphones are well aware of what it means to receive a call or text.”
Law360 further outlined how the plaintiffs’ bar has countered that under contract law in most states, those under 18 cannot legally consent to a binding contract such as the one that’s allegedly formed when a consumer affirmatively agrees to receive automated or prerecorded marketing texts. However, that argument “ignores that contracts with minors are voidable rather than void,” according to Daly.
“That doctrine acts as a shield, not a sword,” Daly said. “Filing suit over calls or texts that were received before a minor voided a contract would turn literally centuries of contract law on its head.” Additionally, the plaintiffs’ consent theory introduces “new variables,” including contract and age of consent issues, that vary from “state to state and minor to minor” that are likely to make “the class certification calculus even more challenging for plaintiffs than it already is,” he explained.
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