Phantom Data Transmissions
Davis's firm, Thornton, Davis & Fein, hired a computer engineering company to test AT&T data usage against monthly charges. The engineer had AT&T set up the phone and let it sit for 10 days. "He did that for several months, with several phones. The iPhone had over 30 data transmissions that occurred in the middle of the night—data transmissions that he never asked for," says Davis, who described the charges as phantom charges.
"That happened consistently over a period of several months, in spite of the fact that all the applications on the phone were completely turned off and there were no data services of any kind requested," adds Davis.
Next, they compared the size of data downloads to the charges of the AT&T monthly bill. "He (the computer engineer) specifically tested certain websites (where he knew the size of the data download) then compared it to the bill, and the bill was always more," says Davis.
Davis also says that it is impossible for AT&T customers to monitor their usage accurately because the company downloads are not necessarily charged to a customer's bill in the same month the download occurs.
"The ones that were consistently overcharging were the iPhones and the iPads," says Davis. "That is the basis of the lawsuit because there are over 20 million people that have iPhones or iPads, and without question, every single one of them is getting overcharged in one way or another."
"It is kind of like going to the gas station and paying for 10 gallons of gas and you get nine," says Davis. "Some people are going to use more than the nine and have to buy more, and some people aren't going to use the nine, but are still paying for ten."
"I don't know if it was done intentionally or just negligence," says veteran attorney Davis. "There is no allegation that it is intentional on their part. It may or may not be. All we know is they are overcharging."
AT&T has yet to respond formally to the complaint, but it did tell NBC News recently that it does not believe there is any wrongdoing on its part.
Anyone who has an iPhone or an iPad and has a limited data usage plan with AT&T are eligible to join the class action.
Barry L. Davis is a partner in the firm of Thornton, Davis & Fein. He has been a practicing attorney for 25 years and has conducted more than 50 complex litigation trials.