`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF TEXAS
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`CASE NO.
`
`
`
`
`
`
`
`JURY TRIAL DEMANDED
`
`
`
`JAMARQUIS ETHERIDGE,
`
`
`
`v.
`
`AT&T, INC. AND AT&T MOBILITY, LLC
`
`
`
`
`Plaintiff
`
`Defendants.
`
`
`
`COMPLAINT
`
`Plaintiff Jamarquis Etheridge (“Etheridge”) is an individual and citizen of the State of Texas, by
`
`and through his counsel, Richard E. Brown of Richard E. Brown Attorney at Law, PC, complains
`
`and alleges based on his personal knowledge with respect to his own acts and on information and
`
`belief with respect to all other matters as follows:
`
`I.
`
`INTRODUCTION
`
`1.
`
`Plaintiff Etheridge is a current wireless telephone customer of Defendants AT&T,
`
`Inc., and AT&T Mobility, LLC (collectively referred to as “AT&T” or “Defendant”). This is an
`
`action for damages and remedies for violations of, inter alia, the Federal communications Act,
`
`47 U.S.C. § 201, arising in part from AT&T's failure to provide reasonable and appropriate
`
`security to maintain the security of and prevent unauthorized access to Plaintiff Etheridge's
`
`wireless account.
`
`2.
`
`On or about September 10, 2020 AT&T improperly allowed wrongdoers access to
`
`Plaintiff Etheridge's wireless account and, without his authorization. AT&T was unable to
`
`contain this security breach until the next day, enabling wrongdoers to drain Plaintiff Etheridge's
`
`cryptocurrency exchange account.
`
`db/20-12011/Complaint
`
`1
`
`
`
`
`Case 4:21-cv-03002 Document 1 Filed on 09/15/21 in TXSD Page 2 of 16
`
`3.
`
`As a result of this breach of security, Plaintiff Etheridge's exchange account was
`
`subjected to unauthorized transfers; he was deprived of his use of his cell phone number and
`
`required to expend time, energy, and expense to address and resolve this financial disruption and
`
`mitigate the consequences; and he also suffered consequent emotion distress.
`
`II.
`
`JURISDICTION AND VENUE
`
`4.
`
`This Court has jurisdiction over this matter under 28 U.S.C. §§ 1331 and 1367 on
`
`the grounds of federal question jurisdiction and supplemental jurisdiction over the state law
`
`claims because all the claims are derived from a common nucleus of operative facts and are such
`
`that Plaintiff would ordinarily be expected to try them in one action.
`
`5.
`
`Venue is proper in this Court under 28 U.S.C. § 1391(b)(2) and (c). A substantial
`
`part of the events or omissions giving rise to this Complaint occurred in this District. AT&T is
`
`also headquartered and has its principal place of business in this District. Wireless services
`
`subject of this Complaint were entered into in part in this District. AT&T has received
`
`compensation as a result of its acts and practices in this District.
`
`6.
`
`The Court has jurisdiction over the lawsuit under 28 U.S.C. §1332(a)(1) because
`
`Plaintiff and Defendants are citizens of different U.S. states, and the amount in controversy
`
`exceeds $75,000, excluding interest and costs.
`
`7.
`
`Unless this Court permanently restrains and enjoins AT&T, AT&T will continue
`
`to engage in the acts and practices alleged in this Complaint.
`
`8.
`
`Venue is proper in the Southern District of Texas.
`
`III. PARTIES
`
`9.
`
`Plaintiff Etheridge is an individual and a resident of Harris County, Texas. Since
`
`in or about 2009 Plaintiff Etheridge has been an accountholder and subscriber with AT&T.
`
`Plaintiff Etheridge entered into the contract with AT&T in Harris County, Texas.
`2
`
`
`db/20-12011/Complaint
`
`
`
`Case 4:21-cv-03002 Document 1 Filed on 09/15/21 in TXSD Page 3 of 16
`
`10.
`
`Defendant AT&T, Inc. is a Delaware corporation doing business in Texas and
`
`may be served with process by serving its Registered Agent, CT Corporation System at 1999
`
`Bryan St., Ste. 900, Dallas, Texas 75201-3136 or wherever it may be found.
`
`11.
`
`Defendant AT&T Mobility, LLC. is a Delaware limited liability company doing
`
`business in Texas and may be served with process by serving its Registered Agent, CT
`
`Corporation System at 1999 Bryan St., Ste. 900, Dallas, Texas 75201-3136 or wherever it may be
`
`found.
`
`12.
`
`Plaintiff reserves the right to move the Court to convert and certify this action as a
`
`class action on behalf of the yet undefined class of individuals residing within Texas and/or
`
`elsewhere who were subjected to the same circumstances set forth here.
`
`PRELIMINARY STATEMENT
`
`13. This action brought by Plaintiff Etheridge, an AT&T customer who lost hundreds of
`
`thousands of dollars in an incident of a rapidly-emerging identity theft crime: “SIM swapping” or
`
`“SIM hijacking”.
`
`14. A subscriber identity module, widely known as a “SIM card,” stores user data in
`
`phones on the Global System for Mobile (GSM) network – the radio network used by AT&T to
`
`provide cellular telephone service to its subscribers.
`
`15. SIM cards are principally used to authenticate cellphone subscriptions; as without a
`
`SIM card, GSM phones are not able to connect to AT&T’s telecommunications network.
`
`16. Not only is a SIM card vital to using a phone on the AT&T network, the SIM card
`
`also holds immeasurable value as a tool to identify the user of the phone – a power that can be
`
`corrupted to steal property and the identity of that user.
`
`17. AT&T’s Code of Business Conduct specifically promises that AT&T will “protect
`
`the privacy of our customers’ communication” because “[n]ot only do our customers demand
`3
`
`
`db/20-12011/Complaint
`
`
`
`Case 4:21-cv-03002 Document 1 Filed on 09/15/21 in TXSD Page 4 of 16
`
`this, but the law requires it. Maintaining the confidentiality of communication with AT&T’s
`
`duties and obligations under the Federal Communications Act of 1934 and the pertinent
`
`implementing regulations.
`
`18. Moreover, AT&T was well aware of the pervasive harm posed by SIM swapping,
`
`as AT&T has issued public advisories warning customers of the “industry-wide” threat and
`
`assuring those customers that AT&T was exercising adequate measures to prevent authorized
`
`SIM swapping from happening to its accountholders.
`
`19. Notwithstanding AT&T’s knowledge of the prevalence of SIM swapping and its
`
`assurance that it was actively protecting its customers, those measures did not adequately protect
`
`Plaintiff Etheridge from the harm he suffered.
`
`20. As a result of AT&T’s failures if not active participation in SIM swap theft that was
`
`inflicted upon him, Plaintiff Etheridge has had over 159.8 ETHEREUM Tokens of assets stolen
`
`from him.
`
`21. Plaintiff Etheridge seeks compensatory and equitable relief restoring to him 159.8
`
`ETHEREUM Tokens that were illegally taken from him as a result of AT&T’s conduct and as
`
`alleged herein.
`
`22. Since in or about 2009, Plaintiff Etheridge has been an accountholder and
`
`subscriber with AT&T.
`
`
`
`OTHER LIABLE PERSONS/ENTITIES
`
`23.
`
`In addition to the entity set forth as Defendants herein, there are likely other parties
`
`who may well be liable to Plaintiff Etheridge, but respecting whom Plaintiff Etheridge currently
`
`lacks specific facts to permit him to name such person or persons as a party-respondent. By not
`
`db/20-12011/Complaint
`
`4
`
`
`
`
`Case 4:21-cv-03002 Document 1 Filed on 09/15/21 in TXSD Page 5 of 16
`
`naming such persons or entities at this time, Plaintiff Etheridge is not waiving the right to amend
`
`this pleading to add such parties, should the facts warrant adding such parties.
`
`IV. FACTS
`
`24.
`
`AT&T markets and sells wireless telephone service through standardized wireless
`
`service plans at various retail locations, online sales, and over the telephone. In connection with
`
`its wireless services, AT&T maintains wireless accounts enabling its customers to have access to
`
`information about the services they purchase from AT&T.
`
`25.
`
`It is widely recognized that mishandling of customer wireless accounts can
`
`facilitate identify theft, related consumer harms, including the theft of third parties of
`
`consumers, including Plaintiff Etheridge.
`
`26.
`
`Among other things, AT&T's sales and marking materials state "we have
`
`implemented various policies and measures to ensure that our interactions are with you or those
`
`you authorize to interact with us on your behalf – and not with others pretending to be you or
`
`claiming a right to access your information."1
`
`27.
`
`AT&T's sales and marking materials further state that, unless AT&T can verify
`
`the caller's identity through certain personal information or a PIN if requested by customer,
`
`AT&T's policy is not to release any account specific information.
`
`28.
`
`Despite these statements and other similar statements, AT&T failed to provide
`
`reasonable and appropriate security to prevent unauthorized access to customer accounts. Under
`
`AT&T's procedures, an unauthorized person, including AT&T's own agents and employees
`
`acting without the customer's permission, can be authenticated and then access and make
`
`changes to all the information the legitimate customer could access and make changes to if the
`
`customers were so authorized. As set forth in this Complaint, AT&T also fails to disclose or
`
`11 Emphasis added.
`
`db/20-12011/Complaint
`
`5
`
`
`
`
`Case 4:21-cv-03002 Document 1 Filed on 09/15/21 in TXSD Page 6 of 16
`
`discloses misleadingly that its automated processes or human performances often fall short of its
`
`express and implied representations or promises.
`
`In or about 2009, Plaintiff Etheridge entered into a service agreement with AT&T.
`
`This agreement was for service on one (1) wireless telephones, for Plaintiff
`
`29.
`
`30.
`
`Etheridge.
`
`31.
`
`On or about September 10, 2020, Plaintiff noticed his phone service was not
`
`working and immediately called AT&T to find out that his service was compromised.
`
`32. Without obtaining Plaintiff’s permission, his phone service had a four (4) digit
`
`passcode as well. While on the phone with the agent, Plaintiff was told to update a new passcode
`
`to his account and the agent would add “extra” security measures to Plaintiff’s account.
`
`33.
`
`Plaintiff’s phone was restored hours later. The following day, Plaintiff’s phone
`
`service was not working again and Plaintiff immediately called AT&T to see why this was
`
`happening and the agent said it was because the first agent only added Plaintiff’s SIM back to the
`
`account and did not disable the fraudulent SIM. The actions of the first agent was how the
`
`fraudsters were able to deplete most of Plaintiff’s cryptocurrency account.
`
`34.
`
`The neglect of on behalf of AT&T’s first agent/employee is clear, since Plaintiff’s
`
`services have not been compromised since the second agent restored Plaintiff’s services and
`
`completed the job properly.
`
`35. Meanwhile, however, as a result of AT&T's failure to provide reasonable and
`
`appropriate security to prevent unauthorized access to Plaintiff Etheridge's wireless account, after
`
`getting control of Plaintiff Etheridge's phone number, wrongdoers were able to change Plaintiff
`
`Etheridge's password on one of his cryptocurrency accounts and remove most of the contents –
`
`159.8 ETHEREUM Tokens (“Plaintiff Etheridge’s 159.8 ETHEREUM Tokens”).
`
`36.
`
`After the incident, ETH price reached more than $4,200 per coin token.
`6
`
`
`db/20-12011/Complaint
`
`
`
`Case 4:21-cv-03002 Document 1 Filed on 09/15/21 in TXSD Page 7 of 16
`
`37.
`
`By its procedures, practices and regulations, AT&T engages in practices that,
`
`taken together, fail to provide reasonable and appropriate security to prevent unauthorized access
`
`to its customer wireless accounts, allowing unauthorized persons to be authenticated and then
`
`granted access to sensitive customer wireless account data, including access and control over
`
`159.8 ETHEREUM Tokens.
`
`38.
`
`In particular, AT&T has failed to establish or implement reasonable policies,
`
`procedures, or regulations governing the creation and authentication of user credentials for
`
`authorized customers accessing AT&T accounts, creating unreasonable risk of unauthorized
`
`access. As such, at all times material hereto, AT&T has failed to ensure that only authorized
`
`persons have such access and the customer accounts are secure.
`
`39.
`
`Among other things, AT&T:
`
`a. failed to establish or enforce rules sufficient to ensure only authorized persons have
`access to AT&T customer accounts;
`
`b. failed to establish appropriate rules, policies and procedures for the supervision and
`control of its officers, agents or employees;
`
`
`c. failed to establish or enforce rules, or provide adequate supervision or training,
`sufficient to ensure that all its employees or agents follow the same policies and
`procedures. For example, it is often possible to persuade one of AT&T agents to not
`apply the stated security policy and allow unauthorized access without providing a
`PIN. similarly, on information and belief, AT&T agents or employees generally act
`on their own regardless of what is in the notes of a customer account, failing, among
`other things, to accommodate customers' security requests;
`
`
`d. failed to adequately safeguard and protect its customers wireless accounts, including
`that of Plaintiff Etheridge, so wrongdoers were able to obtain access to his account;
`
`
`e. permits the sharing of and access to user credentials among AT&T's agents or
`employees without a pending request from the customer, thus reducing likely
`detection of, and accountability for, unauthorized accesses;
`
`
`f. failed to suspend user credentials after a certain number of unsuccessful access
`attempts. For example, wrongdoers would call numerous times trying to gain access
`to customer accounts before they finally got an agent on the line that would authorize
`access without requiring, for example, a PIN;
`7
`
`
`db/20-12011/Complaint
`
`
`
`Case 4:21-cv-03002 Document 1 Filed on 09/15/21 in TXSD Page 8 of 16
`
`
`g. failed to adequately train and supervise its agents and employees in such a manner
`that allows its agents or employees, without authorization or approval to unilaterally
`access and make changes to customer accounts as if the customer were so authorized;
`
`
`h. allows porting out of phone numbers without properly confirming that the request is
`coming from the legitimate customers;
`
`lacked proper monitoring solutions and thus fails to monitor its systems for the
`presence of unauthorized access in a manner that would enable AT&T to detect the
`intrusion so that the breach of security and diversion of customer information was
`able to occur in Plaintiff Etheridge’s situation and continue until after his virtual
`currency account was compromised;
`
`
`i.
`
`
`j.
`
`failed to implement simple, low-cost, and readily-available defenses to identity
`thieves such as delaying transfers from accounts on which the password was recently
`changed or simply delaying transfers from accounts to allow for additional
`verifications from the customers; and
`
`
`k. failed to build adequate internal tools to help protect its customers against hackers
`and account takeovers, including compromise through phone porting and wrongdoing
`by its own agents or employees actin on their own behalf or on behalf or at the
`request of a third party.
`
`40.
`
`By the security practices and procedures described here, AT&T established user
`
`
`
`credential structures that created an unreasonable risk of unauthorized access to customer
`
`accounts, including that of Plaintiff Etheridge.
`
`41.
`
`On information and belief, AT&T has long been aware about the security risks
`
`presents by, inter alia, its weak user credential structures or procedures. From prior attacks on
`
`customer accounts, AT&T has long had notice of those risks. In addition, AT&T did not use
`
`readily-available security measures to prevent or limit such attacks.
`
`42.
`
`As a result of AT&T's faulty security practices, an attacker could easily gain
`
`access to a customer's account and then use it to gain access to the customer's sensitive
`
`information such as bank accounts or virtual currency accounts, among other things.
`
`43.
`
`As such, AT&T's security measures were entirely inadequate to protect its
`
`customers, including Plaintiff Etheridge.
`
`db/20-12011/Complaint
`
`8
`
`
`
`
`Case 4:21-cv-03002 Document 1 Filed on 09/15/21 in TXSD Page 9 of 16
`
`44.
`
`Lack of adequate security in AT&T's systems, practices, or procedures enabled
`
`the wrongdoers to access Plaintiff Etheridge's wireless account, which then enabled the
`
`wrongdoers to access and steal his virtual currency account and possibly other sensitive
`
`information.
`
`45.
`
`As such, AT&T failed the responsibility it owed to Plaintiff Etheridge to protect
`
`his account and his phone number. Even if the subject incident was due to an "inside" job or
`
`human performance falling short, AT&T is responsible for its agent. And, while AT&T can
`
`outsource customer service functions, AT&T cannot transfer accountability.
`
`46.
`
`Had AT&T provided adequate account security or exercised reasonable oversight,
`
`Plaintiff Etheridge would not have lost his phone number and Plaintiff Etheridge’s 159.8
`
`ETHEREUM Tokens or otherwise been damaged.
`
`47. Making matters worse, Plaintiff Etheridge is not the only AT&T customer to
`
`suffer as a result of AT&T's failure to ensure adequate security of its customer accounts.
`
`48.
`
`After the incident, Plaintiff Etheridge sent a letter to AT&T explaining the
`
`predicament and trying to resolve this matter. AT&T responded with a low settlement offer.
`
`49.
`
`Plaintiff Etheridge believed that AT&T's actions were illegal. As such, he sought
`
`assistance of counsel.
`
`50.
`
`As a direct consequence of AT&T's actions or inactions, Plaintiff Etheridge has
`
`suffered and continues to suffer actual damages, including: (a) lost time; (b) embarrassment and
`
`humiliation; (c) aggravation and frustration; (d) fear; (e) anxiety; (f) financial uncertainty; (g)
`
`unease; (h) emotional distress; (i) expenses, including missed work, delayed projects, postage
`
`expenses and attorney's fees and costs; and (j) lost value of Plaintiff Etheridge’s 159.8
`
`ETHEREUM Tokens.
`
`
`
`db/20-12011/Complaint
`
`9
`
`
`
`
`Case 4:21-cv-03002 Document 1 Filed on 09/15/21 in TXSD Page 10 of 16
`
`V. FEDERAL COMMUNICATIONS ACT
`
`51.
`
`Plaintiff re-alleges the foregoing allegations and incorporates these allegations by
`
`reference as if fully set forth herein.
`
`52.
`
`53.
`
`The FCA regulates interstate telecommunications carriers such as Defendant.
`
`Defendant is a common carrier engaged in interstate communication by wire for
`
`the purpose of furnishing communication services within the meaning of section 201(a) of the
`
`FCA. As "common carrier," Defendant is subject to the substantive requirements of sections 201
`
`and 202 of the FCA.
`
`54.
`
`Under section 201(b), common carriers may impose only those practices,
`
`classifications, and regulations that are "just and reasonable." and, under section 202(a) common
`
`carriers are prohibited from making any unjust or unreasonable discrimination in "practices,
`
`classifications, regulations, facilities, or services."
`
`55.
`
`Should a common carrier "omit to do any act, matter, or thing in this chapter
`
`required to be done," section 206 dictates that the "common carrier shall be liable to the person
`
`or persons injured thereby for the full amount of damages sustained in consequence of any such
`
`violations … together with a reasonable counsel or attorney's fee[.]"
`
`56.
`
`Defendant's conduct, as alleged here, constitutes a knowing violation of section
`
`201(b) and section 202(a). Further, under section 217, Defendant is also liable for the acts,
`
`omissions, or failures, as alleged in this Complaint, of any of its offers, agents, or other persons
`
`acting for or employed by Defendant.
`
`57.
`
`Additionally, Defendant is a "telecommunications carrier" within the meaning of
`
`section 222, which requires every telecommunication carrier to protect, among other things, the
`
`confidentiality of propriety information of, and relating to, customers.
`
`db/20-12011/Complaint
`
`10
`
`
`
`
`Case 4:21-cv-03002 Document 1 Filed on 09/15/21 in TXSD Page 11 of 16
`
`58.
`
`Defendant's conduct, as alleged here, constitutes a knowing violation of section
`
`222. On information and belief, Defendant disclosed, without Plaintiff's approval, Plaintiff's
`
`proprietary information to a third party or parties for reasons other than for emergency services.
`
`Defendant also improperly permitted access to Plaintiff's customer proprietary network
`
`information in Defendant's provisions of its services.
`
`59.
`
`As a direct consequence of Defendant's violations of the FCA, Plaintiff has been
`
`damaged and continues to be damaged in an amount to be provide at trial.
`
`VI. BREACH OF CONTRACT
`
`60. Plaintiff re-alleges the foregoing allegations and incorporates these allegations by
`
`reference as if fully set forth herein.
`
`61. Plaintiff entered into a contract both express and implied with Defendant.
`
`62. Defendant offered to provide wireless phone service in consideration of payment for
`
`services from Plaintiff. Under the terms of the agreement, Plaintiff was required to pay in full
`
`the agree-to charges submitted to him on his bills. Failure to pay in full would cause a breach of
`
`contract and discontinuance of wireless telephone service, among other things. Plaintiff accepted
`
`the offer of services from Defendant and performed all the conditions, covenants, promises, and
`
`agreements required of him under the terms of the contract, and all conditions precedent have
`
`otherwise occurred or been waived.
`
`63. Among other things, the express and implied terms of the contract were that
`
`Defendant would provide reasonable and appropriate security to prevent unauthorized access to
`
`his wireless account or otherwise safeguard and protect Plaintiff's private and confidential
`
`account information and not transfer his phone number to anyone without his express
`
`authorization.
`
`db/20-12011/Complaint
`
`11
`
`
`
`
`Case 4:21-cv-03002 Document 1 Filed on 09/15/21 in TXSD Page 12 of 16
`
`64. Defendant has failed, neglected, and refused, and continues to fail, neglect, and
`
`refuse to perform its part of the contract or to tender such performance.
`
`65. In the absence of such implied and express contract terms, Plaintiff would have acted
`
`differently in his purchasing decision or would not have agreed to entered into a contract with
`
`AT&T. Nor would he have entered into the contract if AT&T had properly disclosed to him the
`
`true extent of its account security measures or lack thereof.
`
`66. As a direct consequence of Defendant's breach of the contract, Plaintiff has been
`
`damaged and continues to be damaged in an amount to be proven at trial.
`
`VII. NEGLIGENCE
`
`67.
`
`Plaintiff re-alleges the foregoing allegations and incorporates these allegations by
`
`references as if fully set forth herein.
`
`68.
`
`Defendant owed Plaintiff a duty of, inter alia, care in the handling and
`
`safeguarding of his customer account for the purposes of providing wireless services.
`
`69.
`
`70.
`
`Defendant breached the duties it owed to Plaintiff.
`
`As a direct consequence of Defendant's negligence, Plaintiff has been damaged
`
`and continues to be damaged in an amount to be proven a trial, no part of which has been paid.
`
`VIII. VIOLATION OF TEXAS DECEPTIVE TRADE PRACTICES ACT
`
`70.
`
`Plaintiff re-alleges the foregoing allegations and incorporates these allegations by
`
`reference as if fully set forth herein.
`
`71.
`
`Plaintiff is a consumer as that term is defined under the Texas Deceptive Trade
`
`Practices Act (“DTPA”). One or more of the Defendants engaged in deceptive acts or practices
`
`in soliciting Plaintiff to use the AT&T cellular phone service. In particular, the false, misleading
`
`and deceptive acts perpetrated by one or more of the Defendants included, but not limited to:
`
`db/20-12011/Complaint
`
`12
`
`
`
`
`Case 4:21-cv-03002 Document 1 Filed on 09/15/21 in TXSD Page 13 of 16
`
`a. causing confusion or misunderstanding about the source, sponsorship, approval or
`certification of goods and services;
`
`b. causing confusion or misunderstanding about affiliation, connection, or
`association with, or certification by another;
`
`c. representing that goods or services have sponsorship, approval, characteristics, or
`benefits that they do not have;
`
`d. advertising goods or services with the intent not to sell them as advertised;
`
`e. representing that an agreement confers or involves rights, remedies or obligations
`that it does not, or that are prohibited by law;
`
`f. misrepresenting the authority of the salesman, representative or agent to negotiate
`the final terms of a consumer transaction; and
`
`g. failing to disclose information about goods or services that was known at the time
`of the transaction and the failure to disclose was intended to induce the consumer
`to enter into the transaction that consumer would not have entered into if the
`information had been disclosed.
`
`72.
`
`Plaintiff relied on the false, misleading or deceptive acts and practices engaged in
`
`
`
`
`
`
`
`
`
`
`
`
`
`by one or more of the Defendants. As a result, Plaintiff suffered damages caused by the false,
`
`misleading or deceptive acts or practices by one or more of the Defendants.
`
`73.
`
`Plaintiff has suffered economic damages as a result of the Defendants’ actions in
`
`an amount to be determined at trial. In addition, because Defendants’ actions were knowing and
`
`intentional violations of the DTPA, Plaintiff is entitled to treble damages under the statute. In
`
`addition, Plaintiff is entitled to his reasonable and necessary attorneys’ fees incurred in the
`
`prosecution of this action. Tex. Bus. Com. Code §17.50(d).
`
`IX. NEGLIGENT HIRING, RETENTION, AND SUPERVISION
`
`74.
`
`Plaintiff re-alleges the foregoing allegations and incorporates these allegations by
`
`reference as if fully set forth herein.
`
`db/20-12011/Complaint
`
`13
`
`
`
`
`Case 4:21-cv-03002 Document 1 Filed on 09/15/21 in TXSD Page 14 of 16
`
`75.
`
`At all times material hereto, Defendant's agents, officers, and employees,
`
`including those directly or indirectly responsible for or involved in transferring Plaintiff's phone
`
`number to another carrier were under Defendant's direct, supervision, and control.
`
`76.
`
`Defendant further assumed this duty by holding its officers, agents, and
`
`employees out to the public as competent representatives.
`
`77.
`
`On information and belief, Defendant negligently retained, controlled, trained,
`
`and supervised its agents and employees when Defendant knew or should have known they
`
`posted a security threat. Defendant knew or should have known that is agents or employees
`
`would allow unauthorized access its customer accounts, including that of Plaintiff.
`
`78.
`
`On information and belief, Defendant negligently retained, controlled, trained,
`
`and supervised its agents and employees so they committed the wrongful acts complained of
`
`herein against Plaintiff and other members of the public. On information and belief, Defendant
`
`failed to properly control and supervise them to ensure customer account safety.
`
`79.
`
`It was foreseeable to Defendant is agents and employees would compromise
`
`customer account safety or engage in other acts complained of here. Despite this knowledge,
`
`Defendant failed to exercise reasonable care to supervise or control its agents and employees.
`
`On information and belief, Defendant engaged in the acts alleged herein and/or condoned,
`
`permitted, authorized, and/or ratified the conduct of its agents and employees
`
`80.
`
`As a direct result of Defendant's negligent hiring, control, retention and
`
`supervision, Plaintiff has suffered damages in an amount to be proven at trial.
`
`X. NEGLIGENT INFLICTION OF EMOTION DISTRESS
`
`81.
`
`Plaintiff re-alleges the foregoing allegations and incorporates these allegations by
`
`reference as if fully set forth herein.
`
`82.
`
`Defendant could foresee that is actions would harm Plaintiff.
`14
`
`
`db/20-12011/Complaint
`
`
`
`Case 4:21-cv-03002 Document 1 Filed on 09/15/21 in TXSD Page 15 of 16
`
`83.
`
`84.
`
`85.
`
`Defendant had a duty to Plaintiff.
`
`Defendant breached its duty to Plaintiff.
`
`Defendant made false and material misrepresentations regarding its security
`
`measures and failed to establish and implement reasonable policies and procedures governing the
`
`creation and authentication of user credentials for persons accessing Defendant's databases and
`
`customer information.
`
`86.
`
`Defendant's actions have resulted in severe emotion distress and/or garden variety
`
`emotional distress for Plaintiff, and Defendant's reckless disregard for Plaintiff's customer
`
`account has significantly deteriorated Plaintiff's health.
`
`XI. PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff prays for the following relief:
`
`Judgment against Defendant for actual damages;
`
`Statutory damages for DTPA and Federal Communications Act violations;
`
`Treble damages under DTPA, calculated from the damages determined by the
`
`1.
`
`2.
`
`3.
`
`Court;
`
`4.
`
`Award of reasonable attorney fees and reimbursement of all costs for the
`
`prosecution of this action under DTPA and other statutory provisions;
`
`5.
`
`6.
`
`7.
`
`Pre – and post-judgment interest on any amounts awarded;
`
`Punitive damages as applicable; and
`
`Such other and further relief as the Court deems just and proper.
`
`TRIAL BY JURY
`
`
`
`Under the seventh amended to the Constitution of the United States of America, Plaintiff
`
`is entitled to, and demands, a trial by jury.
`
`
`
`db/20-12011/Complaint
`
`15
`
`
`
`
`Case 4:21-cv-03002 Document 1 Filed on 09/15/21 in TXSD Page 16 of 16
`
`DATED this 8th day of September 2021.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`RICHARD E. BROWN ATTORNEY AT LAW, P.C.
`
`
`
`
`
`
`
`/s/ Richard E. Brown
`RICHARD E. BROWN
`54 Sugar Creek Center Blvd., Suite 300
`Sugar Land, Texas 77478
`Tel:
`(713) 977-8178
`Fax:
`(281) 888-1723
`E-mail: brownreb34@aol.com
`State Bar of Texas No. 03162400
`
`ATTORNEY FOR PLAINTIFF
`JAMARQUIS ETHERIDGE
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`db/20-12011/Complaint
`
`16
`
`
`