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

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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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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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