“Disturbing”: Cell Phone Carrier’s Internal Coding Leads to TCPA Suit—Case Brought from Resulting Confusion Dismissed but Attorneys’ Fees Denied

Here’s another extremely interesting one.

Apparently a consumer in Texas was receiving unwanted calls. Notations on her cell phone records made it look like those calls were coming from a business she eventually sued. But, in actuality, those calls were not made by the Defendant’s number at all. Instead, it was a case of mistaken identity—and the cell phone carrier caused the confusion.

The case is Davis v. Acorn Stairlifts, Inc., Civil Action No. 3:19-CV-02300-X, 2021 U.S. Dist. LEXIS 102195 (N.D. Tex.  June 1, 2021) and it shows just how strange a place TCPAWorld can be.

According to the decision, the Defendant initiated an investigation as to the source of Plaintiff’s calls when it was sued for calls it believed it did not make. Its counsel eventually determined that the calls had actually come from a third-party but that codes inserted by the plaintiff’s cell phone carrier made it look like the calls had come from defendant: “”What was recently uncovered thru this investigation is to say the least, most disturbing. Namely the number on the [carrier] records, which appears to be Acorn’s phone number, is in fact an [carrier] internal systems number only.”

The Defendant served a Rule 11 letter on the Plaintiff upon advising of this mix up. Defendant secured declarations supporting its position and the Plaintiff’s counsel recommended dismissing the suit on the final day of the safeharbor period.

But the Defendant was not done.

Upset that the action had been filed in the first place the Defendant sought to recover attorney’s fees and costs against the Plaintiff. The Court ultimately awarded costs—a total of $485.45—but denied attorney’s fees. In the Court’s view Plaintiff’s counsel had not done anything to multiply the litigation needlessly, had agreed to dismiss within Rule 11 safeharbor period, and had a good faith basis to file the suit in the first place. The confusing carrier data had apparently lead to the lawsuit and that wasn’t the Plaintiff’s fault.

Notably the Defendant incurred over $44,000.00 in attorney’s fees defending the lawsuit and is out all of those dollars. All because of some carrier coding confusion.

That’s TCPAWorld for you.



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