Judge Partly Grants, Partly Denies T-Mobile's Motion to Dismiss SIM Swap Case

U.S. District Judge John Chun for Western Washington in Seattle dismissed in part and granted in part T-Mobile’s motion to dismiss a six-count SIM swap lawsuit filed against the carrier in February, said his order Friday (docket 2:23-cv-00271). T-Mobile moved to dismiss, saying that all but one of Eman Bayani’s claims were time-barred by a one-year time limitation in its terms and conditions (T&Cs) and that the plaintiff failed to state a claim under the Federal Communications Act (FCA). The T&Cs don’t form the basis of Bayani’s complaint and are inappropriate for incorporation, said Chun. Though Bayani doesn’t dispute that a contract bound him and T-Mobile when he possessed a T-Mobile phone number, the complaint doesn’t seek recourse based on contract violations but instead on T-Mobile’s alleged violations of state and federal statutes, said the order. The court denied T-Mobile’s motion to dismiss five claims on time-bar grounds. Private litigants can bring an action for damages when a carrier violates an FCC rule or regulation that lawfully implements 47 U.S.C. Section 201(b), said the order. Bayani contends T-Mobile violated regulation 47 C.F.R. when it failed to “properly authenticate a customer prior to disclosing [customer proprietary network information] based on customer-initiated telephone contact” and "therefore has a private cause of action," said the order. Bayani alleges plausible claims under the FCA, and he alleges plausible negligence claims, said Chun. Bayani alleged T-Mobile committed an affirmative act when it transferred Bayani’s SIM card “without instituting proper procedures to protect access to [Bayani’s] information” and "exposed his account information to a scammer,” and the court agreed. Bayani failed to allege a plausible Stored Communications Act (SCA) claim because he didn’t allege the contents divulged to SIM swap scammers were in electronic storage or that T-Mobile provides remote computing services, said the judge. Bayani adequately pleaded a cognizable loss under the Computer Fraud and Abuse Act because the CFAA provides a civil remedy for anyone who “suffers a damage or loss by reason of a violation of" U.S.C. Code Cection 1030, Chun said. The judge dismissed with prejudice Bayani’s FCA claim based on T-Mobile’s failure to protect the confidentiality of his information; he also dismissed his SCA claims without prejudice. Bayani has until Nov. 16 to seek leave to amend the complaint.