, 21 tweets, 11 min read Read on Twitter
As always, @stephendpalley and @NelsonMRosario cover the world of Crypto Litigation in the #CryptoCaseLawMinute. This week, they covered @michaelterpin v. AT&T and questioned who's the big winner from this week's ruling in the #SimSwap litigation. Here's my unique perspective:
1) #BiasAlert: I represent 40+ victims in #SimSwap litigation against #ATT #TMobile and #Verizon. My cases have all been filed in Arbitration (i.e. Confidential). I do not represent @michaelterpin in his lawsuit against #ATT, and I have no inside information about his case.
2) #ATT filed a Motion to Dismiss to get rid of Terpin's entire case. It is very hard to get a case dismissed, because the Court must take EVERY single fact alleged in the Complaint as TRUE.
3) The Court addressed the big ticket items and basically said that #Terpin has to provide additional facts in his Complaint to continue moving the case forward. I am confident that Michael and his team will be able to do this in the next 21 days, as ordered by the Court.
4) What road map did the Court give Michael's legal team? First, the Court addressed Proximate Cause. #ATT made two basic arguments: 1) the hackers, not ATT, were responsible, and 2) Terpin did not allege how #ATT switching the #SimCard resulted in his funds being stolen.
5) The Court found that Terpin has alleged that the criminal acts of a third party were "reasonably foreseeable" by #ATT. That was a HUGE win for Terpin. Period. End of the Motion to Dismiss game. We'll see you at the Summary Judgment phase after discovery is complete.
6) That's a big deal in litigation. Big companies want to avoid the discovery battle and disclosing all its mistakes. #ATT very much wanted to AVOID discovery. Nobody likes when their mistakes become public.
7) The Court gave Terpin 21 days to file an Amended Complaint showing how ATT transferring the #SIMCard resulted in the theft of his crypto assets. Like the CCM guys, I am confident Terpin will be able to connect those dots.
8) Here's where I diverge from @stephendpalley/@NelsonMRosario (and it's only a semantical disagreement at worst): The guys think the defense of independent third party criminal acts as a defense is "not a bad one." I disagree.
9) The Court stated: "Where an intervening act by a third party was foreseeable, it does not amount to a superseding cause relieving the negligent defendant of liability.” In #Twitter terms: if you helped the bad guy, you're still liable.
10) From publicly available information - such as the indictment of ATT agents Jarratt White and Robert Jack - we know that #TelecomEmployeesAndContractors were accessing and providing confidential information to the bad guys. justice.gov/usao-edmi/pr/n…
11) This type of information will be used as evidence to overcome any lack of foreseeability argument by any #Telecom company.
12) Another interesting take by the Court consistent with the above argument was that the Court was not prepared to find that the Consent Decree submitted by Terpin had no possible bearing in the litigation. The Court found that the Consent Decree is relevant to foreseeability.
13) Terpin alleged that the FCC investigation discovered that ATT’s “employees had been paid by criminals to hand over customers’ information, [ATT’s] employees had used their login credentials to access confidential information...
14) ... and [ATT] had not properly supervised its employees’ access to its customers’ information.”

Does that sound familiar? Ummmm - yeah....
15) And for the more law geeky people: the Court also found that Terpin had sufficiently pled that ATT permitted unauthorized access to his propriety information - specifically, his account information and private communications.
16) This will be important for the statutory claims that Terpin filed.
17) Last but not least, the Court found that the Economic Loss Doctrine did not apply and that #SimSwapping cases fall into the exception. For non-lawyers, this means that while #ATT threw the kitchen sink at the Motion to Dismiss, they basically came up empty.
18) So does this mean that Terpin won? No - far from it. This is a long battle. Was it a Pyrrhic victory? Absolutely not. It was withstanding the first big punch thrown by #ATT. It was the equivalent of Rocky withstanding Drago in the first round.
19) Keeping the Rocky metaphor going, now we need to see if @michaelterpin can land a punch in Round 2 that cuts #ATT's eye and exposes them as human. @mdudas see the 1:19 mark and yell with me "He's cut - he's cut"
20) #SimSwapping is a serious problem. Michael is speaking out about it and so am I. Every time someone calls me about it, they tell me how it has personally affected them - whether they lost $1000 or $1,000,000 it doesn't matter. This is a problem that can be fixed.
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