Case 3:16-cv-01283-JM-MDD Document 1 Filed 05/27/16 Page 1 of 25

1

LAW OFFICES OF RONALD A. MARRON RONALD A. MARRON (SBN 175650)

2 ron@consumersadvocates.com

ALEXIS WOOD (SBN 270200) 3 alexis@consumersadvocates.com

4

KAS GALLUCCI (SBN 288709) kas@consumersadvocates.com

5 651 Arroyo Drive

6

San Diego, California 92103 Telephone:(619) 696-9006

7 Facsimile: (619) 564-6665

8 LAW OFFICE OF ROBERT L. TEEL

9

ROBERT L. TEEL (SBN 127081) lawoffice@rlteel.com

10 207 Anthes Ave, 2nd Floor

Telephone:(866) 833-5529 11 Facsimile: (855) 609-6911

12 Attorneys for Plaintiff and the Proposed Class 13

14

UNITED STATES DISTRICT COURT

15

SOUTHERN DISTRICT OF CALIFORNIA

16 JUAN ROMERO and FRANK
17 TISCARENO, on behalf of themselves, and all others similarly situated,
18

19

Plaintiffs,

20

v.

21 SECURUS TECHNOLOGIES, INC, 22
Defendant. 23

Case No.: '16CV1283 JM MDD
CLASS ACTION
COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF PURSUANT TO CALIFORNIA PENAL CODE § 636 AND BASED ON NEGLIGENCE
DEMAND FOR JURY TRIAL

24

25

26

27

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1

INTRODUCTION

2

3

1.

Plaintiffs Juan Romero (“Romero”) and Frank Tiscareno

4 (“Tiscareno”), individually referred to herein as a “Plaintiff” and collectively as the

5 “Plaintiffs”, individually and on behalf of all other persons similarly situated, by

6 their undersigned attorneys, for their complaint against defendants, file this lawsuit

7 to stop Securus Technologies, Inc. (“Securus” or “Defendant”) from illegally

8 monitoring, recording, maintaining, storing, and disclosing private phone calls by

9 detainees to or from their attorneys without either party’s permission and without

10 warning, and allege the following based upon personal knowledge as to themselves

11 and their own acts, and information and belief as to all other matters, based upon,

12 inter alia, the investigation conducted by and through their attorneys, which

13 includes, without limitation, a review of the Defendant’s public documents,

14 announcements, and wire and press releases published by and regarding Securus,

15 and information readily obtainable on the internet.

16

JURISDICTION AND VENUE

17

18

2.

This Court has original jurisdiction pursuant to the Class Action

19 Fairness Act, 28 U.S.C. § 1332(d), because: (a) at least one member of the putative

20 Class is a citizen of a state different from Securus; (b) the amount in controversy

21 exceeds $5,000,000, exclusive of interest and costs; (c) the proposed class consists

22 of more than 100 class members; and (d) none of the exceptions under the subsection

23 apply to this action.

24

3.

This Court has supplemental jurisdiction over the California Invasion

25 of Privacy Act, Penal Code §§ 630, et seq. (“CIPA”) and common law claims

26 pursuant to 28 U.S.C. § 1367 (supplemental jurisdiction over pendant state law

27 claim).

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1 4.

This Court has jurisdiction over Defendant because: (a) it is registered

2 to conduct business in California; and (b) has sufficient minimum contacts in

3 California, or otherwise intentionally avails itself of the markets within California

4 through the promotion, sale, marketing, and distribution of its products and services,

5 to render the exercise of jurisdiction by this Court proper and necessary.

6 5.

Venue is proper in this District under 28 U.S.C. § 1391 because

7 Plaintiffs are residents of and domiciled in this District, Defendant conducts

8 substantial business in this District, and a substantial part of the events giving rise to

9 Plaintiffs’ claims occurred in this District.

10

11

PARTIES

12

6.

Plaintiff Juan Romero is a resident of San Diego, California and the

13 county of San Diego, who was a detainee and prisoner held at one or more of San

14 Diego county’s detention facilities, and a user of the Securus phone system who has

15 used Securus’ phone system to communicate with his attorney.

16

7.

Plaintiff Frank Tiscareno is a resident of Menifee, California and the

17 county of Riverside, who was a detainee and prisoner held at one or more of San

18 Diego county’s detention facilities, and a user of the Securus phone system who has

19 used Securus’ phone system to communicate with his attorney.

20

8.

Defendant Securus Technologies, Inc. is a Texas corporation with its

21 principal place of business at 14651 Dallas Parkway, Suite 600, Dallas. Texas

22 75254-8815.

23

24

SUMMARY AND COMMON FACTUAL ALLEGATIONS

25

26

9.

Plaintiffs are attorney and client users of the Securus phone system

27 who bring this proposed class action lawsuit on behalf of all detainees and attorneys

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1 who used the Securus phone system from June 1, 2008 to the present to communicate

2 and converse whose private phone calls were unlawfully recorded without

3 permission of all parties. Plaintiffs seek injunctive relief requiring Securus to

4 implement and maintain policies and practices to comply with laws and regulations

5 designed to protect privacy rights, and to prevent and remedy these types of unlawful

6 private and confidential recordings, as well as restitution, damages, statutory

7 remedies, disgorgement, and other relief.

8

10. Throughout the country, a person arrested is typically brought to a

9 detention facility or jail to be booked by law enforcement authorities. Attorneys

10 routinely contact, communicate, and converse with persons in jail by phone or

11 videoconference to discuss confidential matters. They do so under the express

12 understanding, representation, and promise from Securus that their conversations are

13 private, confidential, and privileged, and are not to be recorded without permission

14 from all parties. Similarly, Securus represents and promises, and detainees are told

15 and understand, their conversations with their attorneys are private, confidential, and

16 privileged and not to be recorded without permission from all parties.

17

11. Prison and jail communications is a $1.2 billion a year business. Securus

18 provides phone and videoconferences services to detainees nationwide and, without

19 limitation, the San Diego county, San Bernardino county, Riverside county, and

20 other California county detention facilities. The company is a leading provider of

21 phone services inside the country’s prisons and jails.

22

12. Securus claims on its website that it is the largest inmate communications

23 provider in the country serving thousands of correctional facilities and more than 1

24 million inmates in at least 45 states. The company processes over one million calls per

25 day. In 2014, Securus is reported to have generated over $400 million dollars in

26 revenue from tolls and fees it charges detainees and their families, friends, lawyers,

27 and others for speaking with detainees.

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1

13. Securus records communications between detainees and the outside

2 world on servers, electronic storage devices, cables, and software separate from what

3 connects the callers. The equipment it uses to intercept, record, and share detainees’

4 and lawyers’ telephone calls facilitates such calls. The recordings are not a

5 necessary incident of the calls.

6

14. Securus gives local law enforcement agencies direct eavesdropping

7 ability and online access to recorded phone calls and the ability to listen in and

8 review them at any time. In fact, some if not all of Securus’ contracts with law

9 enforcement require Securus to provide inmate call recording and tracking and allow

10 law enforcement, including without limitation prosecuting attorneys, to search the

11 contents of those recordings at will and without notice.

12

13

Promises About Recording of Private Attorney-Client Phone Calls

14 15. Securus promises Plaintiffs, attorneys, and the public that it does not
15 record telephone calls between attorneys and their clients. For instance, its “Video
16 Visitation” brochure states in connection with an inmate’s calls to their attorney,
17 “These private sessions will not be recorded or monitored.” Securus thereby leads
18 detainees and their attorneys to believe calls between them are not recorded without
19 permission of all parties, and are private and confidential.
20 16. But in reality, Securus does eavesdrop on, listen in on, record, and store
21 private and confidential attorney-client phone calls without permission of all parties,
22 and Securus shares access and recordings with law enforcement personnel, including
23 prosecutors, as evidenced by, inter alia, reports by lawyers of production of such
24 recorded calls from prosecutors in discovery. The opportunity for the prosecution
25 to use the knowledge acquired through eavesdropping and listening to the recorded
26 phone calls to their tactical advantage, with or without admitting they eavesdropped
27

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1 or obtained or listened to the recordings, creates a huge potential for mischief and

2 abuse.

3

4

Invasion of Privacy

5 17. Civil detainees, like other citizens, have a right to expect that their phone
6 calls, and especially private and confidential attorney-client phone calls, will not be
7 recorded or stored without their permission. Law enforcement is not free to record and
8 make use of telephone conversations, and especially attorney-client telephone
9 conversations and recordings, without limitation.
10 18. Plaintiffs and their attorneys have a right to privacy when making or
11 receiving attorney-client phone calls. Securus’ conduct seriously violates Plaintiffs’
12 statutory and common law rights of privacy.
13

14

Securus Is Not So Secure

15

16

19. Securus, it turns out, is not so secure. On or about November 11, 2015,

17 the online journalism publication, The Intercept, announced it had received “an

18 enormous cache of phone records” and other material, which revealed a major data

19 breach by Securus of 70 million stored phone call recordings, including what has now

20 been determined to be over 57,000 confidential attorney-client phone calls, and

21 counting, as well as other personal information, in not less than 37 states. The recorded

22 and leaked calls span a nearly two and one-half year period beginning in December

23 2011 and ending in the spring of 2014 in calls that range from under a minute to over

24 an hour in length. Securus makes money when the call is connected, regardless of how

25 long it lasts, and gets more revenue the longer the call goes on.

26

20.

Securus advertises and promotes itself as having a superior phone system

27 called the “Secure Call Platform” that is able to monitor, record, and securely store

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1 phone call recordings and make them accessible only to authorized users within the

2 criminal justice system. Securus’ promotional material touts itself as a provider of “the

3 most technologically advanced audio and video communications platform to allow

4 calls with a high level of security.”

5

21. Securus also states that it does “not sell, trade, or otherwise transfer to

6 outside parties, including law enforcement, personally identifiable information,”

7 except under certain limited circumstances. In fact, Securus does extensive business

8 with local and county governments and private contractors, state departments of

9 correction, the federal Bureau of Prisons, and the U.S. Marshal’s Service, all of which

10 operate the nation’s jails and run the nation’s prison systems. Securus derives

11 substantial revenue from “site commissions,” which it kicks back in the form of

12 payments to government law enforcement from revenue generated by inmate calls.

13

22. Securus’ website claims that its database contains the billing names and

14 addresses of over half a million people who are not incarcerated, as well as information

15 about 1,000,000 inmates from over 2,000 correctional facilities, that includes over 100

16 million call records. Securus recognizes that this is valuable data and boasts it can

17 make it available at the fingertips of law enforcement and correctional authorities.

18 Securus states that the data, which is available and being sold to corrections and law

19 enforcement authorities through so-called “site commissions,” is “growing every day”

20 and can be provided to law enforcement investigators on demand.

21

22

Securus Breaches Its Duties and Obligations

23 23. In addition to the duties and obligations Securus has voluntarily
24 undertaken and committed to, Securus has statutory obligations not to record private
25 and confidential attorney-client phone calls without permission of all the parties. For
26 example, Securus has a duty and obligation to follow all federal, state, and local laws
27 in conducting its business, yet it breached this duty by, amongst other things, recording
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1 private and confidential attorney-client privileged communications without

2 permission.

3

24. In a 2011 bid to provide phone service to inmates in Missouri’s state

4 prisons, Securus undertook a duty and obligation to record and monitor each call, with

5 the exception of attorney-client calls. But, the database provided to The Intercept

6 shows that over 57,000 recordings of inmate-attorney communications were recorded,

7 collected, stored, disclosed, and ultimately hacked.

8

25. The Intercept arrived at the 57,000 figure by looking up each of the nearly

9 1.3 million phone numbers that inmates called in a public directory of businesses to

10 find out whether a law firm or attorney’s office is associated with that number. Those

11 numbers, however, do not include calls to attorney cellphone or other attorneys’

12 numbers not listed in a public business directory and the number of recorded attorney-

13 client calls is undoubtedly higher.

14

26. Securus has undertaken other similar duties and obligations not to record

15 private attorney-client conversations and communications, both directly to users of the

16 Securus system, and in its contracts with law enforcement, yet it appears Securus has

17 no intention of ceasing its unlawful, unconstitutional eavesdropping, recording, and

18 invasion of private attorney-client communications. Detainees and lawyers are all at

19 substantial risk of having their conversations monitored, recorded, and used against

20 them to prejudice their criminal cases and that Defendant will continue to violate their

21 rights

22

27. Securus claims on its website that it has a superior, revolutionary

23 technology that collects intelligence from more than 2,600 law enforcement and

24 correction agencies “providing unbeatable lead generation.” It also promotes itself as

25 “SAS 70 and Sarbanes-Oxley compliant.”

26

28. Securus also promises that it’s platform will “allow calls with a high level

27 of security and that it “understands that confidentiality of calls is critical, and [it] will

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1 follow all federal, state, and local laws in the conduct of [its] business.” It also pledges

2 to “provide and invest in security features that will make all parties and the public safe

3 while maintaining the critical family connection to inmates.”

4

29. However, the sheer scale of the Securus hack of over 70 million

5 recordings shows that the company’s promotional and advertising claims are false and

6 misleading and that Securus has failed to live up to its own duties, obligations, and

7 undertakings.

8

30. In addition, the quantitative nature of the data hack reveals the falsity of

9 Securus’ promotional and advertising material. The Securus database reveals that the

10 recordings contained prisoners’ first and last names; the phone numbers they called;

11 the date, time, and duration of the calls; the inmates’ Securus account numbers; as well

12 as other information. In addition to metadata, each phone call record includes a

13 “recording URL” which provides a link to where the audio recordings of the calls can

14 be downloaded with the click of a mouse.

15

31. On November 12, 2015, Securus admitted the data breach and flaws in

16 its security measures for the first time when it emailed The Intercept and stated

17 “evidence suggests that an individual or individuals with authorized access to a limited

18 set of records may have used that access to inappropriately share those records.”

19

32. According to The Intercept, in an email thread from July 21, 2014, two

20 Securus employees discussed the breach. “OMG……..this is not good!” reads

21 one email contained in the document. “The company will be called to task for this if

22 someone got in there that shouldn’t have been.” There is no indication the 2014 hack

23 had been made public prior to The Intercept article.

24

33. The private phone calls Securus recorded between detainees and their

25 attorneys while in physical custody in San Diego county were not included in The

26 Intercept cache of phone calls.

27

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1

Securus Does Not Warn Attorney Client Users

2

3

34. Since at least 2013, users of the Securus phone system for phone calls

4 between attorneys and their clients have only heard the Securus prompt associated

5 with the Securus’ marketing information, but not the prompt warning them that the

6 phone call was being monitored and recorded.

7

35. Securus recorded private and confidential phone calls from detainees to

8 the San Diego county Public Defender's Office and Alternate Public Defender's

9 Office, as well as other criminal defense attorneys, without their permission and

10 without any warning at various times from at least 2013 until at least August, 2014.

11

36. During the period from May 2013 to July 2014 attorney-client calls,

12 including to the Public Defender’s Office, Alternate Public Defender’s Office, and

13 other attorney offices, including without limitation Plaintiffs’ lawyer, were recorded

14 without permission or warning.

15

37. Securus knew these calls were being recorded unlawfully and covered it

16 up by suppressing and concealing the true facts. Securus had a duty and was bound to

17 disclose its unlawful eavesdropping and recording due to its superior and exclusive

18 knowledge of the true facts which were not known or reasonably accessible to 19 Plaintiffs. Instead, Securus actively concealed, suppressed, omitted, and failed to

20 disclose these true facts concerning the recording, storage, and security of private,

21 confidential, and privileged attorney-client phone calls with the intent to induce

22 Plaintiffs to continue to purchase Securus’ communications services.

23

38. Plaintiffs were unaware of these suppressed and omitted material facts at

24 the time they used the Securus system. Plaintiffs relied on the truthfulness and

25 reliability of the statements made by Securus. Plaintiffs did not know, or have any 26 reason to know, of these facts, conditions or circumstances. If they had known the true 27 facts at the time of their purchases, Plaintiffs would not have used or paid for Securus’

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1 services for their attorney-client communications and would have taken action sooner

2 to protect their privacy rights.

3

39. The total number of private phone calls between detainees and their

4 lawyers recorded without permission or warning is currently unknown, but the

5 recording of private attorney-client calls appears endemic to the Securus system on a

6 California-wide, and indeed a nationwide, basis.

7

40. Securus, though, can tell us how many private calls were unlawfully

8 recorded. Securus brags it has the capability at its fingertips to query its system and

9 know exactly which, and how many, private calls were recorded.

10

41. In addition to San Diego county (population 3.2M), Securus also does

11 business in Riverside county (population 2.2M), San Bernardino county (populations

12 2M), San Mateo county (population 700K) other California counties. In all, Securus

13 claims to serve 70 detention facilities in California alone. Based on an extrapolation

14 of the Missouri statistics, the potential number of private attorney-client phone calls

15 unlawfully recorded by Securus is staggering, with well over 500,000 calls estimated

16 per year made just to the Public Defenders’ offices in the four counties listed above.

17

42. Securus has been wrongly and unjustly enriched by payments illegally

18 collected by Securus, and the retention of such payments is unfair and unlawful given

19 the true facts regarding the eavesdropping, listening to, recording, storage, disclosure,

20 and security of the conversations between Plaintiffs and their attorney, and other

21 attorney-client users of the Securus system. Securus should not be allowed to retain

22 the proceeds from the benefits conferred upon it by Plaintiffs and other attorney-client

23 users of the Securus system.

24

25

26

27

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1

PLAINTIFFS’ EXPERIENCE

2

Plaintiff Romero

3

4

43. Plaintiff Juan Romero is a resident of San Diego, California and the

5 county of San Diego who formerly was a detainee and prisoner of, without limitation,

6 the San Diego County George Bailey Detention Facility. During the Class Period, Mr.

7 Romero used the Securus phone systems in private conversations with his attorney.

8 Mr. Romero’s attorney’s phone conversations with detainees were recorded. On

9 information and belief, Securus recorded Mr. Romero’s private, confidential, and

10 privileged phone calls with his attorney without warning to, or permission from, all

11 parties.

12

44. Neither Plaintiff Romero nor his attorney have received any notice of

13 the recording of their phone calls. Securus’ unlawful recordings have compromised

14 the private, confidential, and privileged conversations of Mr. Romero and his

15 lawyer.

16

17

Plaintiff Tiscareno

18 45. Plaintiff Frank Tiscareno is a resident of Menifee, California and the
19 county of Riverside who formerly was a detainee and prisoner of, without limitation,
20 the San Diego County Central Jail. During the Class Period Mr. Tiscareno used the
21 Securus phone systems in private conversations with his attorney. Mr. Tiscareno’s
22 attorney’s phone conversations with detainees were recorded. On information and
23 belief, Securus recorded his private, confidential, and privileged phone calls with his
24 attorney without warning to, or permission from, all parties.
25 46. Neither Plaintiff Tiscareno nor his attorney have received a notice of
26 the recording of their phone calls. Securus’ unlawful recordings have compromised
27

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1 the private, confidential, and privileged conversations of Mr. Tiscareno and his

2 lawyer.

3

4

CLASS ACTION ALLEGATIONS

5 47. Plaintiffs brings this action pursuant to Federal Rule of Civil Procedure
6 23 on behalf of themselves and the Class preliminarily defined as:
7

8

The Class

9

All persons and his or her attorneys, that were physically in California: (a)

whose conversation, or any portions thereof were listened to, eavesdropped

10

on, or recorded by Securus from June 1, 2008 to the present, inclusive: (b)

11

without permission of all parties to such conversation; (c) by means of an electronic device; (d) while such person was in the physical custody of a

12

law enforcement officer or other public officer, or who was on the property

13

of a law enforcement agency or other public agency.

14 Such persons are collectively referred to herein individually as a “Class Member”

15 and collectively as the “Class” or “Class Members.”

16

17

48. Excluded from the Class are the Defendant herein, law enforcement

18 agencies and personnel, members of the foregoing persons’ immediate families and

19 their legal representatives, heirs, successors or assigns and any entity or person in

20 which Defendant have or had a controlling or supervisory interest or control over at

21 all relevant times.

22

49. Plaintiffs satisfy the numerosity, commonality, typicality, adequacy,

23 and predominance prerequisites for suing as representative parties pursuant to Rule

24 23.

25

50. Numerosity. The exact number of proposed Class Members is

26 currently not known, but is believed to consist of thousands of former or current

27 Securus detainees and attorneys who have or are using Securus’ phone system and

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1 have had their attorney-client phone conversations recorded without their

2 permission or warning, making joinder of each individual Class Member

3 impracticable.

4

51. Commonality. Common questions of law and fact exist for the

5 proposed Class’ claims and predominate over questions affecting only individual

6 Class Members. Common questions include, without limitation:

7 8 a. Whether the recording of a telephone call between a detainee and his or her

9

or her attorney without permission or warning constitutes a violation of each

10

Class Member’s CIPA rights and the common law tort of invasion of

11 privacy;

12

13

b. What monitoring, limiting, and supervisory procedures and practices should

14

Securus be required to implement to ensure ongoing protection of each Class

15

Member’s CIPA rights and as part of any injunctive relief ordered by the

16

Court;

17 c. Whether Securus violated the Class Members’ rights under California Penal
18

19

Code Section 636 by recording of a telephone call between a detainee and

20

his or her attorney without permission or warning;

21 d. Whether Securus acted negligently by, without limitation: (i) failing to

22

adequately protect Class Members’ privacy rights; (ii) eavesdropping on,

23

listening in to, recording, disclosing, and storing private, confidential, and 24

25

privileged telephone calls between detainees and their attorneys without

26

permission of all parties; (iii) failing to follow all applicable laws; (iv)

27

failing to notify, warn, or get permission of Plaintiffs and Class Members, at

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1

the point of call or otherwise, to record the call; (v) failing to notify

2

Plaintiffs and Class Members after the recording of private telephone calls

3

and conversations between a detainee and his or her attorney without 4

5

permission or warning that the call had been recorded; and (vi) failing to

6

maintain adequate monitoring, limiting, and supervisory procedures,

7

policies, and practices;

8 e. Whether Class Members may obtain damages, restitution, disgorgement,
9

10

declaratory, and injunctive relief against Securus; and

11 f. What monitoring, limiting, supervisory, policies procedures and practices,

12

security procedures, and recording warning and notification procedures

13

Securus should be required to implement as part of any injunctive relief

14 ordered by the Court.
15

16

52. Typicality. Plaintiffs’ claims are typical of the claims of the proposed

17 Class because, among other things, Plaintiffs and Class Members sustained similar

18 injuries and statutory damages as a result of Securus’ uniform wrongful conduct and

19 their legal claims all arise from the same core Securus practices.

20

53. Adequacy. Plaintiffs will fairly and adequately protect the interests of

21 the Class. Their interests do not conflict with Class Members’ interests and they

22 have retained counsel competent and experienced in complex, privacy, and class

23 action litigation to vigorously prosecute this action on behalf of the Class. In

24 addition to satisfying the prerequisites of Rule 23(a), Plaintiffs satisfy the

25 requirements for maintaining a class action under Rule 23(b)(3).

26

54. Common questions of law and fact predominate over any questions

27 affecting only individual Class Members and a Class action is superior to individual

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1 litigation. The amount of damages available to individual Plaintiffs are insufficient

2 to make litigation addressing Securus’ conduct economically feasible in the absence

3 of the Class action procedure. Individualized litigation also presents a potential for

4 inconsistent or contradictory judgments, and increases the delay and expense to all

5 parties and the court system presented by the legal and factual issues of the case. By

6 contrast, the Class action device presents far fewer management difficulties and

7 provides the benefits of a single adjudication, economy of scale, and comprehensive

8 supervision by a single court.

9

55. In addition, Class certification is appropriate under Rule 23(b)(1) or

10 (b)(2) because:

11

12

a. the prosecution of separate actions by the individual Members of the

13

proposed Class would create a risk of inconsistent or varying adjudication

14

which would establish incompatible standards of conduct for Securus;

15 b. the prosecution of separate actions by individual Class Members

16

17

would create a risk of adjudications with respect to them which would, as a

18

practical matter, be dispositive of the interests of other Class Members not

19

parties to the adjudications, or substantially impair or impede their ability to

20

protect their interests; and

21 c. Securus has acted or refused to act on grounds that apply generally to
22

23

the proposed Class, thereby making final injunctive relief or declaratory

24

relief described herein appropriate with respect to the proposed Class as a

25

whole.

26

27

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1

FIRST CAUSE OF ACTION

2

Violation of the California Invasion of Privacy Act

3

Cal. Pen. Code §§ 630, et seq.

4

On Behalf of the Plaintiffs Individually and the Class

5

6

56. Plaintiffs incorporate by reference the foregoing allegations.

7

57. The California Invasion of Privacy Act, Cal. Pen. Code §§ 630, et seq.

8 (“CIPA”), states that “The Legislature hereby declares that advances in science and

9 technology have led to the development of new devices and techniques for the

10 purpose of eavesdropping upon private communications and that the invasion of

11 privacy resulting from the continual and increasing use of such devices and

12 techniques has created a serious threat to the free exercise of personal liberties and

13 cannot be tolerated in a free and civilized society.”

14

58. Plaintiffs and the Class Members made and received private,

15 confidential, and privileged telephone calls which were recorded by Securus without

16 permission of all parties and without disclosure to both parties that the phone calls

17 may be or were being recorded.

18

59. California Penal Code § 636(a) prohibits “[e]very person” from

19 ‘without permission from all parties to the conversation, eavesdrop[ping] on or

20 record[ing], by means of an electronic device, a conversation, or any portion thereof,

21 between a person who is in the physical custody of a law enforcement officer or

22 other public officer, or who is on the property of a law enforcement agency or other

23 public agency, and that person's attorney, religious adviser, or licensed physician . .

24 .”

25

60. Pursuant to California Penal Code § 632(b), Securus is a “person.”

26

27

28 16

Romero et al v. Securus Technologies, Inc. CLASS ACTION COMPLAINT

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1

61. Securus violates the CIPA when it listens to, eavesdrops, or records,

2 stores, and discloses, without permission private, privileged, and confidential phone

3 calls made and received by the Class Members without permission of all parties.

4

62. Securus does not have express or implied permission of all parties to

5 eavesdrop upon or record private, confidential, and privileged telephone calls to or

6 from attorneys with their clients without warning. To the contrary, Securus

7 expressly undertook a duty and obligation to the Plaintiffs and Class Members when

8 it told them their calls would not be recorded.

9

63. The Class Members do not consent, expressly or impliedly, to Securus’

10 eavesdropping upon and recording of their private, confidential, and privileged

11 phone calls between attorneys and their clients. Securus does not disclose to or warn

12 the Class Members that their private, confidential, and privileged calls may be

13 recorded, stored, and disclosed to third parties. Plaintiffs and the Class Members do

14 not know or expect, or have any reason to know or suspect that Securus records their

15 private, confidential, and privileged phone calls between attorneys and their clients.

16

64. California Penal Code Section 637.2 provides: “Any person who has

17 been injured by a violation of this chapter may bring an action against the person

18 who committed the violation for the greater of the following amounts:

19

20

(a) Five thousand dollars ($5,000).

21

(b) Three times the amount of actual damages, if any, sustained by the

22 Plaintiffs.
23 (c) Any person may, in accordance with Chapter 3 (commencing with
24 25 Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, bring an action to
26 enjoin and restrain any violation of this chapter, and may in the same action seek

27 damages as provided by subdivision (a).

28 17

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1

(d) It is not a necessary prerequisite to an action pursuant to this section

2 that the Plaintiff has suffered, or be threatened with, actual damages.” 3

4

65. Accordingly, Plaintiffs request the Court issue declaratory relief

5 declaring Securus’ practice of eavesdropping on, listening to, recording, disclosing,

6 or using private, confidential, and privileged between detainees and their attorney

7 without permission of all parties unlawful.

8

66. Plaintiffs request the Court enter an injunction requiring Securus to

9 cease the unlawful practices described herein and enjoining Securus from

10 eavesdropping on, listening to, recording, disclosing, or using private, confidential,

11 and privileged communications between detainees and their attorneys without

12 permission of all parties and order Securus to seek, obtain, and destroy all existing

13 recordings in their possession or the possession of third parties to whom they have

14 given access or disclosed unlawfully recorded communications.

15

67. Plaintiffs request that the Court enter an injunction ordering that

16 Securus: (a) engage a third party ombudsman as well as internal compliance

17 personnel to monitor, conduct test, and audit Securus’ safeguards and procedures on

18 a periodic basis; (b) audit, test, and train its internal personnel regarding any new or

19 modified safeguards and procedures; (c) conduct regular checks and tests on its

20 safeguards and procedures; (d) periodically conduct internal training and education

21 to inform internal personnel how to identify violations when they occur and what to

22 do in response; and (e) meaningfully educate its former and current users about their

23 privacy rights by pre-recorded statements at the beginning of recorded phones calls,

24 as well as any steps they must take to safeguard such rights.

25

68. Plaintiffs request the Court enter an order pursuant to Cal. Penal Code

26 Section 637.2 awarding statutory damages of $5,000 to Plaintiffs and each Class

27 Member for each phone call unlawfully recorded without permission of all parties.

28 18

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1

SECOND CAUSE OF ACTION

2

Negligence

3

On Behalf of Plaintiffs Individually and the Class

4

5

69. Plaintiffs incorporate the above allegations by reference.

6

70. In providing telecommunications products and services to Plaintiffs and

7 the Class, Securus owed a duty to exercise reasonable care in safeguarding and

8 protecting private, confidential, and privileged attorney-client phone calls. This duty 9 included, among other things, taking reasonable measures to implement and 10 maintain reasonable procedures to protect the rights of Class Members in compliance 11 with applicable law, including, but not limited to, procedures and policies to 12 supervise, restrict, limit, and determine: (a) whether any conversation between a

13 detainee and his or her attorney is or was being recorded; (b) whether all parties had 14 given their permission to have their conversation recorded; (c) whether the 15 conversation is being, or had in fact been, recorded; (d) how long after discovery any 16 recordings, whether they were lawfully obtained or not, can be retained before being 17 destroyed and notice given to the injured persons; (e) and under what circumstances

18 the recordings, whether lawfully obtained or not, may be sold, transferred, reviewed, 19 disclosed, or released to third parties.

20

71. In providing services to the Plaintiffs and the Class, Securus owed them

21 a duty to exercise reasonable care: (a) in obtaining permission to record their

22 conversations; (b) in recording and adequately securing the privacy of attorney-

23 client telephone calls and the privilege applicable to such calls; and (b) in protecting

24 the content of Plaintiffs and the Class’ attorney-client phone calls from unauthorized

25 eavesdropping, listening in, recording, storage, disclosure, and access and use.

26

72. Securus’ systems, policies, and procedures for handling the private,

27 confidential, and privileged information of attorney-client phone calls were intended

28 19

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1 to affect Plaintiffs and the Class. Securus was aware that by providing phone

2 products and services to the attorney-client users of its systems, it had a

3 responsibility to take reasonable measures to protect the phone calls from being

4 eavesdropped on or recorded and not to provide access to law enforcement,

5 prosecutors, or other third parties without restriction.

6

73. The duty Securus owed to Plaintiffs and Class Members to protect their

7 private, confidential, and privileged attorney-client phone calls is also underscored

8 by the California Invasion of Privacy Act, which recognizes the importance of

9 maintaining the confidentiality of attorney-client phone calls and was established to

10 protect individuals from improper recording of such calls.

11

74. Additionally, Securus had a duty to timely disclose to and/or warn

12 Plaintiffs and Class Members that their private, confidential, and privileged were,

13 had been, or were reasonably believed to have been recorded. Timely disclosure is

14 appropriate so that Plaintiffs and Class Members could, among other things,

15 undertake appropriate measures to avoid such recordings and prevent or mitigate the

16 risk of unlawful recording and disclosure.

17

75. There is a very close connection between Securus’ failure to take

18 reasonable measures to protect attorney-client users of its systems and the injury to

19 Plaintiffs and the Class. When individuals have their private, confidential, and

20 privileged attorney-client phone calls recorded: (a) they are at risk for improper use

21 of such recordings by law enforcement, prosecutors, and other parties, and of having

22 their privacy rights violated; and (b) they may need to incur additional costs and

23 expense to protect themselves from such invasions of privacy.

24

76. Securus is legally responsible and to blame for such unlawful

25 eavesdropping and recordings and the violations of the privacy rights of the attorney-

26 client users of its service because it failed to take reasonable privacy and recording

27 measures. If Securus had taken reasonable privacy and recording security measures,

28 20

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1 private, confidential, and privileged phone calls of attorney-client users of Securus’

2 products and services would not have been eavesdropped on or recorded.

3

77. The policy of preventing future harm weighs in favor of finding a

4 special relationship between Securus and the Class. Securus’ attorney-client users

5 of its telecommunications products and services count on Securus to keep their

6 attorney-client phone calls private. Indeed, they are captive users. If Defendant is

7 not held accountable for failing to take reasonable privacy security and recording

8 measures to protect the attorney-client users of their system, they will not take the

9 steps that are necessary to protect against future invasions of privacy and rights.

10

78. It was foreseeable that if Securus did not take reasonable security

11 measures, the private, confidential, and privileged attorney-client phone calls of

12 Plaintiffs and Members of the Class would be recorded and unlawfully disclosed.

13 Securus should have known to take precautions to secure such attorney-client calls.

14

79. Securus breached its duty to exercise reasonable care in protecting the

15 private attorney-client phone calls of Plaintiffs and the Class by: (a) failing to

16 implement and maintain adequate recording and security measures to safeguard

17 phone calls; (b) failing to monitor its systems to identify unlawful activity; (c)

18 allowing unauthorized recording and access to the private attorney-client phone calls

19 of Plaintiffs and the Class; and (d) failing to otherwise prevent unauthorized

20 eavesdropping, recording, listening to, or disclosure of such calls.

21

80. Securus breached its duty to timely warn or notify Plaintiffs and the

22 Class about the unlawful recordings. Securus has failed to issue any warnings to its

23 current and former attorney-client users of its systems affected by the recordings.

24 Additionally, Securus was, or should have been, aware of the unlawful recordings

25 as early as June 1, 2008.

26

81. But for Securus’ failure to implement and maintain adequate measures

27 to protect the privacy and confidentiality of the Plaintiffs’ and Class Members

28 21

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1 attorney-client calls and conversations, and its failure to monitor its systems to

2 identify unlawful recordings and suspicious activity, the private recording of

3 Plaintiffs and Class Members would not have been made, and they would not be at

4 a heightened risk of unlawful recordings in the future.

5

82. Securus’ negligence was a substantial factor in causing harm to

6 Plaintiffs and Class Members and in violating the Class’ CIPA and common law

7 privacy rights.

8

83. As a direct and proximate cause and result of Securus’ failure to

9 exercise reasonable care and use reasonable measures to safeguard the private,

10 confidential and privileged nature of the recorded attorney-client phone calls, such

11 calls of Plaintiffs and the Class attorney-client users of the Securus

12 telecommunications services were eavesdropped on, listened to, recorded, stored,

13 and disclosed, such that unauthorized individuals could use the information to

14 compromise Plaintiffs privacy rights. Plaintiffs and the Class face a heightened risk

15 of such invasions of privacy in the future.

16

84. Members of the Class have also suffered economic damages, including

17 incurring additional legal costs and expenses and charges for phone calls they would

18 not have otherwise incurred and paid.

19

85. Neither Plaintiffs nor other Class Members contributed to the unlawful

20 conduct set forth herein, nor did they contribute to Securus’ unlawful eavesdropping,

21 listening to, recording, or storage of attorney-client phone calls, nor to the

22 insufficient measures to safeguard the private nature of such calls and conversations.

23

86. Plaintiffs and the Class seek compensatory damages and punitive

24 damages with interest, the costs of suit and attorneys’ fees, and other and further

25 relief as this Court deems just and proper.

26

27

28 22

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1

PRAYER FOR RELIEF

2

WHEREFORE, Plaintiffs, individually and on behalf of the proposed Class,

3 request the Court:

4

a. Certify this case as a Class action on behalf of the Class defined above

5 appoint Juan Romero and Frank Tiscareno as Class representatives, and appoint
6

7 the Law Offices of Ronald A. Marron and Robert Teel as Class counsel;

8

b. Award declaratory, injunctive and other equitable relief as is

9 necessary to protect the interests of Plaintiffs and Class Members;

10

c. Award restitution and damages to Plaintiffs and Class Members in an

11 amount to be determined at trial;
12

13

d. Order disgorgement of Defendant’s unjustly acquired revenue, profits,

14 and other monetary benefits resulting from their unlawful conduct for the benefit of

15 Plaintiffs and Class Members in an equitable and efficient manner determined by the

16 Court;

17

18

e.

Order the imposition of a constructive trust upon Defendant such that

19 its enrichment, benefit, and ill-gotten gains may be allocated and distributed

20 equitably by the Court to and for the benefit of Plaintiffs and the Class Members.

21

f. Award Plaintiffs and Class Members their reasonable litigation

22 expenses and attorneys’ fees;
23

24

g. Award Plaintiffs and Class Members pre- and post-judgment interest

25 to the extent allowable; and

26

h. Award such other and further relief as equity and justice may require.

27

28 23

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1

JURY DEMAND

2

Plaintiff hereby demands a trial by jury on all issues so triable.

3

4 Dated: May 27, 2016 5 6 7 8 9 10 11

/s/ Ronald A. Marron By: Ronald A. Marron LAW OFFICES OF RONALD A. MARRON RONALD A. MARRON ALEXIS WOOD KAS GALLUCCI 651 Arroyo Drive San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665

12

LAW OFFICE OF ROBERT L. TEEL

13

ROBERT L. TEEL

14

lawoffice@rlteel.com

15

207 Anthes Ave, 2nd Floor Telephone: (866) 833-5529

16

Facsimile: (855) 609-6911

17

18

Attorneys for Plaintiffs

19

and the Proposed Class

20

21

22

23

24

25

26

27

28 24

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 Case 3:16-cv-01283-JM-MDD Document 8 Filed 07/26/16 Page 1 of 46

1

LAW OFFICES OF RONALD A. MARRON RONALD A. MARRON (SBN 175650)

2 ron@consumersadvocates.com

ALEXIS WOOD (SBN 270200) 3 alexis@consumersadvocates.com

4 KAS GALLUCCI (SBN 288709) kas@consumersadvocates.com

5 651 Arroyo Drive

6

San Diego, California 92103 Telephone:(619) 696-9006

7 Facsimile: (619) 564-6665

8 LAW OFFICE OF ROBERT L. TEEL

9

ROBERT L. TEEL (SBN 127081) lawoffice@rlteel.com

10 207 Anthes Ave., Suite 201

Langley, Washington 98260 11 Telephone:(866) 833-5529

12 Facsimile: (855) 609-6911

13 Attorneys for Plaintiff and the Proposed Class

14

15

UNITED STATES DISTRICT COURT

16

SOUTHERN DISTRICT OF CALIFORNIA

17 JUAN ROMERO, FRANK

Case No.: 16-cv-1283-JM-MDD

TISCARENO, and KENNETH 18 ELLIOTT, on behalf of themselves, and CLASS ACTION

19 all others similarly situated,

FIRST AMENDED COMPLAINT

20

Plaintiffs,

FOR:

21

v.

22 SECURUS TECHNOLOGIES, INC,
23

24

Defendant.

25

26

27

(1) INVASION OF PRIVACY, CAL. PENAL CODE § 636;
(2) UNFAIR COMPETITION, CAL. BUS. & PROF. CODE §§ 17200, et seq.;
(3) CONCEALMENT; (4) FRAUD; (5) NEGLIGENCE; (6) UNJUST ENRICHMENT; AND (7) CONVERSION

28 DEMAND FOR JURY TRIAL

Romero et al v. Securus Technologies, Inc. No. 16-cv-1283 FIRST AMENDED COMPLAINT

Case 3:16-cv-01283-JM-MDD Document 8 Filed 07/26/16 Page 2 of 46

1

INTRODUCTION

2

1.

Plaintiffs Juan Romero (“Romero”), Frank Tiscareno (“Tiscareno”),

3 and Kenneth Elliott (“Elliott”), individually referred to herein as a “Plaintiff” and

4 collectively as the “Plaintiffs,” individually and on behalf of all other persons

5 similarly situated, by their undersigned attorneys, for their complaint against

6 defendant, file this lawsuit to stop Securus Technologies, Inc. (“Securus” or

7 “Defendant”) from, and obtain damages and restitution from Securus for, illegally

8 monitoring, recording, maintaining, storing, and disclosing private phone calls by

9 detainees to or from their attorneys without either party’s permission and without

10 warning, and allege the following based upon personal knowledge as to themselves

11 and their own acts, and information and belief as to all other matters, based upon,

12 inter alia, the investigation conducted by and through their attorneys, which

13 includes, without limitation, a review of Defendant’s public documents,

14 announcements, and wire and press releases published by and regarding Securus,

15 and information readily obtainable on the internet.

16

JURISDICTION AND VENUE

17

2.

This Court has original jurisdiction pursuant to the Class Action

18 Fairness Act, 28 U.S.C. § 1332(d) (“CAFA”), because: (a) at least one member of

19 the putative Class is a citizen of a state different from Securus; (b) the amount in

20 controversy exceeds $5,000,000, exclusive of interest and costs; (c) the proposed

21 Class consists of more than 100 Class Members; and (d) none of the exceptions

22 under the subsection apply to this action.

23

3.

This Court has supplemental jurisdiction over the California Invasion

24 of Privacy Act, Cal. Penal Code §§ 630, et seq. (“CIPA”) and other state statutory

25 and common law claims pursuant to 28 U.S.C. § 1367 (supplemental jurisdiction

26 over pendant state law claims).

27

4.

This Court has personal jurisdiction over Defendant because: (a) it is

28 registered to, and in fact does, conduct business in California; and (b) has sufficient

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1 minimum contacts in California, or otherwise intentionally avails itself of the

2 markets within California through the promotion, sale, marketing, and distribution

3 of its products and services, to render the exercise of jurisdiction by this Court proper

4 and necessary.

5

5.

Venue is proper in this District under 28 U.S.C. § 1391 because: (a)

6 Plaintiffs are residents of, and domiciled in, this District, (b) Defendant conducts

7 substantial business in this District, and (c) a substantial part of the events giving

8 rise to Plaintiffs’ claims alleged herein occurred in this District.

9

PARTIES

10

6.

Plaintiff Juan Romero is a resident of San Diego, California and the

11 county of San Diego, who was a detainee and prisoner held at one or more of San

12 Diego county’s detention facilities at various times from August 15, 2012 through

13 May 6, 2016, and a user of the Securus phone system who has used Securus’ phone

14 system to communicate legal information with his attorneys.

15

7.

Plaintiff Frank Tiscareno is a resident of Menifee, California and the

16 county of Riverside, who was a detainee and prisoner held at one or more of San

17 Diego county’s detention facilities from February 14, 2013 through February 25,

18 2013 and October 8, 2013 and September 26, 2015, and a user of the Securus phone

19 system who has used Securus’ phone system to communicate legal information with

20 his attorney(s).

21

8.

Plaintiff Kenneth Elliott is a resident of San Diego, California and the

22 county of San Diego, a licensed criminal attorney who has practiced law in San

23 Diego since 1988, and has used the Securus’ phone system to give legal advice to

24 and communicate legal information with his clients since Securus commenced

25 providing telephone services at San Diego county detention facilities.

26

9.

Defendant Securus Technologies, Inc. is a Delaware corporation with

27 its principal place of business at 14651 Dallas Parkway, Suite 600, Dallas, Texas

28 75254-8815.

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1

SUMMARY AND COMMON FACTUAL ALLEGATIONS

2 10. Plaintiffs are attorney and detainee users of the Securus phone system

3 who bring this proposed class action lawsuit on behalf of all detainees and attorneys

4 who used the Securus phone system from July 10, 2008 to present (the opt-out date,

5 inclusive) to communicate, converse, and exchange information and legal advice,

6 and whose private phone calls were unlawfully recorded without permission of all

7 parties. Plaintiffs seek injunctive relief requiring Securus to implement and maintain

8 policies and practices to comply with all applicable laws and regulations designed

9 to protect privacy rights, and to prevent and remedy these types of unlawful private

10 and confidential recordings, as well as restitution, damages, statutory remedies,

11 disgorgement, and other further relief this Court may deem proper.

12 11. Throughout the country, a person arrested is typically brought to a

13 detention facility or jail to be booked by law enforcement authorities. Attorneys 14 routinely contact, communicate, converse, and exchange information and legal 15 advice with detainee clients in jail, by phone or videoconference to discuss 16 confidential matters. They do so under the express understanding, representation, 17 and promise from Securus that their conversations are private, confidential, and 18 privileged, and are not to be recorded without permission from all parties. Similarly, 19 Securus represents and promises, and detainees are told and understand, their 20 conversations with their attorneys are private, confidential, and privileged and not 21 to be recorded without permission from all parties. 22 12. Prison and jail communications is a $1.2 billion a year business. Securus 23 provides phone and videoconference services to detainees nationwide and, without 24 limitation, San Diego county, San Bernardino county, Riverside county, and other

25 California county detention facilities. Securus is a leading provider of phone

26 services inside the country’s prisons and jails.

27

13. Securus claims on its website that it is the largest inmate communications

28 provider in the country serving thousands of correctional facilities and more than one

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1 million inmates in at least 45 states. The company processes over one million calls per

2 day. In 2014, Securus is reported to have generated over $400 million dollars in

3 revenue from tolls and fees it charges detainees and their families, friends, lawyers,

4 and others for speaking with detainees.

5

14. Securus records communications between detainees and the outside

6 world on servers, electronic storage devices, cables, and software separate from what

7 connects the callers. The equipment it uses to intercept, record, and share detainees’

8 and lawyers’ telephone calls facilitates such calls. The recordings are not a

9 necessary incident of the calls.

10

15. Securus gives local law enforcement agencies direct eavesdropping

11 ability and online access to recorded phone calls and the ability to listen in and

12 review them at any time. In fact, some, if not all, of Securus’ contracts with law

13 enforcement require Securus to provide inmate call recording and tracking and allow

14 law enforcement, including without limitation prosecuting attorneys, to search the

15 contents of those recordings at will and without notice.

16

Promises About Recording of Private Attorney-Client Phone Calls

17 16. Securus promises Plaintiffs, Class Members, attorneys, and the public

18 that it does not record telephone calls between attorneys and their clients. For

19 instance, its “Video Visitation” brochure states in connection with an inmate’s calls

20 to their attorney: “These private sessions will not be recorded or monitored.”

21 17. Securus also pledges in its Customer Integrity Pledge on its website to

22 its customers, inmates, friends, family, attorneys, and the corrections community,

23 without limitation, that:

24

• We will be open and honest in our dealings;

25

• We will always be truthful in what we can do and what we can't do in

26

responses to your questions and requests;

27

• We understand that confidentiality of calls is critical, and we will

follow all Federal, State, and Local laws in the conduct of our

28

business; and

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1

• We will show you respect, dignity, and integrity in all of our

2

dealings.

3

18. Securus thereby leads detainees and their attorneys, including Plaintiffs

4 and Class Members, to believe calls between them are not recorded without

5 permission of all parties, and are private and confidential.

6

19. In reality, however, Securus does eavesdrop on, listen in on, record, and

7 store private and confidential attorney-client phone calls without permission of all

8 parties, and Securus shares access and recordings with law enforcement personnel,

9 including prosecutors, as evidenced by, inter alia, reports by lawyers of production

10 of such recorded calls from prosecutors in discovery. The opportunity for the

11 prosecution to use the knowledge acquired through eavesdropping and listening to

12 the recorded phone calls to their tactical advantage, with or without admitting they

13 eavesdropped or obtained or listened to the recordings, creates a huge potential for

14 mischief and abuse and a chilling effect on the effective assistance of counsel - a

15 constitutional right.

16

Invasion of the Protected Privacy Interest

17

20. Civil detainees, like other citizens, have an objectively reasonable right

18 to expect that their phone calls, and especially private and confidential attorney-client

19 phone calls, will not be recorded or stored without their permission. Law enforcement

20 is not free to record and make use of telephone conversations, and especially attorney-

21 client telephone conversations and recordings, without limitation.

22

21. Plaintiffs, Class Members, and all attorneys and their clients have a right

23 to privacy when making or receiving attorney-client phone calls. Securus’ conduct

24 seriously violates Plaintiffs and Class Members’ statutory and common law rights of

25 privacy and invades constitutionally, statutorily, and legally protected financial and

26 privacy interests that caused, and threatens to cause, real-world, concrete, and palpable

27 harm that affects Plaintiffs and Class Members in a personal and individual way.

28

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1

Securus is Not So Secure

2

22. On or about November 11, 2015, the online journalism publication, The

3 Intercept, announced it had received “an enormous cache of phone records” and other

4 material, which revealed a major data breach by Securus of 70 million stored phone

5 call recordings, including what has now been determined to be over 57,000

6 confidential attorney-client phone calls, and counting, as well as other personal

7 information, in not less than 37 states. The recorded and leaked calls span a nearly two

8 and one-half year period beginning in December 2011 and ending in the spring of 2014

9 in calls that range from under a minute to over an hour in length. Securus makes money

10 when the call is connected, regardless of how long it lasts, and receives more revenue

11 the longer the call lasts.

12

23.

Securus advertises and promotes itself as having a superior phone system

13 called the “Secure Call Platform” that is able to monitor, record, and securely store

14 phone call recordings and make them accessible only to authorized users within the

15 criminal justice system. Securus, through promotional materials, touts itself as a

16 provider of “the most technologically advanced audio and video communications

17 platform to allow calls with a high level of security.”

18

24. Securus also states that it does “not sell, trade, or otherwise transfer to

19 outside parties, including law enforcement, personally identifiable information,”

20 except under certain limited circumstances. In fact, Securus does extensive business

21 with local and county governments and private contractors, state departments of

22 correction, the federal Bureau of Prisons, and the U.S. Marshal’s Service, all of which

23 operate the nation’s jails and run the nation’s prison systems. Securus derives

24 substantial revenue from “site commissions,” which it kicks back in the form of

25 payments to government law enforcement from revenue generated by inmate calls.

26

25. Securus’ website claims that its database contains the billing names and

27 addresses of over half a million people who are not incarcerated, as well as information

28 about 1,000,000 inmates from over 2,000 correctional facilities, that includes over 100

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1 million call records. Securus recognizes that this is valuable data and boasts it can

2 make it available at the fingertips of law enforcement and correctional authorities.

3 Securus states that the data, which is available and being sold to corrections and law

4 enforcement authorities through so-called “site commissions,” is “growing every day”

5 and can be provided to law enforcement investigators on demand.

6

Securus Breaches Its Duties and Obligations

7

26. In addition to the duties and obligations Securus has voluntarily

8 undertaken and committed to, Securus has statutory obligations not to record private

9 and confidential attorney-client phone calls without permission of all the parties. For

10 example, Securus has a duty and obligation to follow all federal, state, and local laws

11 in conducting its business, yet breached this duty by, amongst other things, recording

12 private and confidential attorney-client privileged communications without permission

13 or consent.

14

27. In its 2011 bid to provide phone service to inmates in Missouri’s state

15 prisons (just as it did in its bid to provide phone service to detainees of the San Diego

16 County Sheriff’s Office and all the other local and county detention facilities

17 throughout California), Securus undertook a duty and obligation to record and monitor

18 each call, with the exception of attorney-client calls. But, the database provided to The

19 Intercept shows that over 57,000 recordings of Missouri inmate-attorney

20 communications were recorded, collected, stored, disclosed, and ultimately hacked.

21

28. The Intercept arrived at the 57,000 figure by looking up each of the nearly

22 1.3 million phone numbers that inmates called in a public directory of businesses to

23 find out whether a law firm or attorney’s office is associated with that number. Those

24 numbers, however, do not include calls to attorneys’ cellphones or other attorneys’

25 numbers not listed in a public business directory, and the number of recorded attorney-

26 client calls is undoubtedly higher.

27

29. Securus has undertaken these duties and obligations not to record private

28 attorney-client conversations and communications, both directly to users of the

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1 Securus system, and in its contracts with law enforcement agencies, yet it appears

2 Securus has no intention of ceasing its unlawful, unconstitutional eavesdropping,

3 recording, and invasion of private attorney-client communications. Detainees and

4 lawyers are all at substantial risk of having their conversations monitored, recorded,

5 and used against them to prejudice their criminal cases, and that Defendant will

6 continue to violate their rights.

7

30. Securus claims on its website that it has a superior, revolutionary

8 technology that collects intelligence from more than 2,600 law enforcement and

9 correction agencies, “providing unbeatable lead generation.” It also promotes itself as

10 “SAS 70 and Sarbanes-Oxley compliant.”

11

31. Securus promises that its platform will “allow calls with a high level of

12 security” and that it “understands that confidentiality of calls is critical, and [it] will

13 follow all federal, state, and local laws in the conduct of [its] business.” It also pledges

14 to “provide and invest in security features that will make all parties and the public safe

15 while maintaining the critical family connection to inmates.”

16

32. However, the sheer scale of the Securus hack of over 70 million

17 recordings shows that the company’s promises and promotional and advertising

18 claims are false and misleading and that Securus has failed to live up to its own duties,

19 obligations, and undertakings.

20

33. In addition, the qualitative nature of the data hack reveals the falsity of

21 Securus’ promises and promotional and advertising materials. The Securus database

22 reveals that the recordings contained prisoners’ first and last names; the phone numbers

23 they called; the date, time, and duration of the calls; the inmates’ Securus account

24 numbers; as well as other information. In addition to metadata, each phone call record

25 includes a “recording URL”, which provides a link to where the audio recordings of

26 the calls can be downloaded with the click of a mouse.

27

34. On November 12, 2015, Securus admitted the data breach and flaws in

28 its security measures for the first time when it emailed The Intercept and stated

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1 “evidence suggests that an individual or individuals with authorized access to a limited

2 set of records may have used that access to inappropriately share those records.”

3

35. According to The Intercept, in an email thread from July 21, 2014, two

4 Securus employees discussed the breach. “OMG……..this is not good!” reads

5 one email contained in the document. “The company will be called to task for this if

6 someone got in there that shouldn’t have been.” There is no indication the 2014 hack

7 had been made public prior to The Intercept article.

8 36. In response to The Intercept article Securus issued a press release

9 saying,

10

"It is very important to note that we have found absolutely no evidence of

11

attorney-client calls that were recorded without the knowledge and consent of

12

those parties," Securus added. "Our calling systems include multiple safeguards

to prevent this from occurring. Attorneys are able to register their numbers to

13

exempt them from the recording that is standard for other inmate calls.

14 Securus’ did in fact have undeniable evidence that of attorney-client calls that were

15 recorded without the knowledge and consent of those parties as further set forth

16 below.

17

37. Securus lied thinking it was “in the clear” because the private phone calls

18 Securus recorded between detainees and their attorneys while in physical custody in

19 San Diego county were not included in The Intercept cache of phone calls.

20

No Permission or Warning

21

38. Commencing in and around 2008, the San Diego County Sheriff’s

22 Office (“Sheriff”) verbally and in writing informed the San Diego criminal defense

23 bar that attorneys who requested to opt-in to, and have their telephone numbers

24 placed on, a “Do Not Record” database, and register those numbers to persons whose

25 conversations with inmates may be privileged, that their calls would be “privatized”

26 and not recorded.

27

39. On or about July 10, 2008, Plaintiff Elliott provided the Sheriff with

28 three office numbers and two wireless numbers which were placed in the “Do Not

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1 Record” database and registered to him as private, thereby informing the Sheriff he

2 did not give permission to have his telephone calls with detainees and prisoners

3 recorded.

4 40. On July 10, 2008, Detective David Hale of the Sheriff’s office wrote

5 Mr. Elliott and stated: “The numbers you requested were placed into the database as

6 privatized.” To this day, Plaintiff Elliott has never been informed or warned that his

7 telephone calls with his detained clients were, or may be, monitored or recorded.

8 41. To the contrary, since at least May 8, 2010, attorneys who have inquired

9 about the privacy or recording of their phone calls with detained clients have been

10 told specifically that if their number is in the “Do Not Record” database, their calls

11 will not be recorded.

12 42. Attorney-client users of the Securus phone system did not and do not

13 hear any “Monitor and Record” prompt, or any other warning or indication that that

14 the phone call was, or is, being monitored and recorded.

15 43. But in fact, Securus did (and does) record private phone calls to and

16 from detainees to their criminal defense attorneys, including the Public Defender’s

17 Office, Alternate Public Defender’s Office, and Assigned Counsel’s Office, without

18 their permission and without any warning.

19

Securus Unlawfully Records Private Attorney-Client Calls

20

44. As an example, without limitation, of dozens of emails evidencing

21 unlawful recording, on March 25, 2014 Captain Frank Clamser of the Sheriff’s office

22 wrote Marlon Miller at Securus stating:

23

“Marlon,

24

I randomly reviewed the call logs for the below telephone numbers for

25

the past year, April 1, 2013 to today. All of these numbers are set as

private numbers in the SCP and should not be being recorded. All of

26

these numbers were recorded at some point in the past year. I know you

27

are trying to determine why private calls are being recorded and I wanted

28

to provide you additional examples.

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1

6192343429 3103937536 2
6192310401 6192318575

3

6192322311 6192327200

4

6192342300 6192355638

5

6192361151 6192371700

6

6193384605 6193384700

6193384800 6193384839

7

6195793316 7606302000

8

7606303333 7609454000

9

7609455535”

10

45. Plaintiff Elliott’s telephone number is 760-630-3333 and is included in

11 the Sheriff’s email as a phone number that is private, should not be recorded, was

12 recorded, and was among the “additional examples” of such recordings.

13

46. Securus’ own records, provided in a declaration by Ian Jones filed on

14 or about July 5, 2016 (ECF No. 4-1), show that during the period from November 2,

15 2012 through May 5, 2016, while in the Sheriff’s custody, Plaintiff Romero placed

16 85 separate phone calls totaling over 5.5 hours to his attorney’s telephone number

17 (619-231-0401), which is set forth in the Sheriff’s March 25, 2014 email. In fact,

18 Plaintiff Romero had a ten-minute phone call with his attorney on March 24, 2014,

19 the day before Captain Clamser’s email which provided “additional examples” of

20 illegally recorded calls.

21

47. Securus’ records also show that from April 11, 2014 through October

22 12, 2015 while in the Sheriff’s custody, Plaintiff Romero placed 8 separate phone

23 calls to the San Diego Public Defender’s telephone number (619-338-4700), which

24 is set forth in the Sheriff’s March 25, 2014 email.

25

48. Securus’ records also show that on January 29, 2015 while in the

26 Sheriff’s custody, Plaintiff Tiscareno placed 3 separate phone calls to his attorney’s

27 telephone number (619-231-0401), which is set forth in the Sheriff’s March 25, 2014

28 email.

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1 49. On April 14, 2014, Captain Clamser emailed Marlon Miller and

2 Christopher Hudson at Securus stating:

3

“Marlon,

4

5

Fished through some of the private calls for the month of April. Attached

6

is a list of private calls I found that were recorded. Can you please

achieve [sic] these calls so they are not able to be listened to. Is there

7

any update on resolving the problem that is allowing these calls to be

8

randomly recorded?”

9

10

50. Two weeks later on April 29, 2014, Captain Clamser again emailed

11 Marlon Miller and Christopher Hudson at Securus, stating:

12

“The attached Excel document contains a list of private call [sic] that were

13

recorded. The most recent call was recorded yesterday. This problem still

14

exists within the SCP and has not been rectified.”

15

16

51. On May 21, 2014, Captain Clamser again wrote Securus’ Chris

17 Hudson, stating:

18

“The attached excel document has a list of private calls that were recorded.

19

The problem still exists. Please ensure these calls are blocked from be

20

[sic] able to be listened to.”

21

52. These and other emails set forth herein and elsewhere describe with

22 detailed particularity the fact that calls between detainees and their attorneys marked

23 private are not only being recorded, but also listened to, without permission, consent,

24 or warning of all parties.

25

Securus “Purges” Lists of Private Recorded Calls

26

53. Rather than notify Plaintiffs, Class Members, and its attorney and

27 detainee customers, Securus “purged” from its system the list of private calls that

28 were recorded.

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1

54. In an email from Christopher Hudson to Captain Clamser on

2 Wednesday, April 2, 2014, Mr. Hudson stated:

3

4

“When I spoke with Marlon last her [sic] was having these numbers purged.

Marlon is not here today. I will follow up with him tomorrow to check the status 5
on this issue. I will keep you updated as well.”

6

7

55. On June 12, 2014, Captain Clamser wrote Chris Hudson stating:

8

“Attached is a list of private calls that were recorded within the system.

9

Can you please purge the calls. is there any time line on when the issue

10

will be resolved.”

11

12

56. On June 17, 2014, Mr. Hudson again wrote Captain Clamser stating:

13

“Also, Here is the latest update regarding San Diego County and the issue

14

with recorded attorney calls per Marlon Miller. The recordings will be

15

purged as a part of this week’s maintenance window.”

16

17

57. And again on July 18, 2014 Captain Clamser emailed Securus:

18 “Please see the attached for a list of private calls that show they were

19

recorded. Please purge.”

20

58. And again on August 5, 2014 Captain Clamser emailed Chris Hudson

21 at Securus:

22

“Please purge the calls on the attached Excel document.”

23

24

59. And again on August 8, 2014 Chris Hudson emailed Captain Clamser:

25

“The last of the calls being purged was the list that you sent me on

26

08/05/2014 regarding the calls that took place from 07/18/2014 through

27

07/21/2014.”

28

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1 60. And again on August 21, 2014, Securus’ Technical Support Technician,

2 Agent ID: 120741, wrote Captain Clamser stating:

3

“This e-mail is to inform you that your request to have calls purged for following

4

private attorney numbers: 6193384700, 6195793316, 6194462900 has been

5

completed. This e-mail is to gain closure authorization for the ticket currently

6

open. Please respond to this e-mail with closure authorization or contact Securus

7

Technical Support at 866-558-2323 and reference ticket number 14857901.”

8 Securus Knows the Private Numbers and Calls That Were Recorded
9

10

61. On March 25, 2014, Captain Clamser emailed Kris Alderman at

11 Securus stating:

12 “I thought you said that you thought they could query all the private numbers to
13 see if any other number were being recorded.”

14 Later that day, Mr. Alderman wrote back,

15

16

“They can, but if they have specifics it will help . . . ”

17 61. Then on June 19, 2014, Debbie Cates from Securus wrote an email to

18 Ankur Desai, Sr. Manager of Technical Support, and Kris Alderman, amongst other

19 Securus personnel, stating:

20

21

“22 calls out of 15,000 has been challenging to capture.”

22

62. On June 20, 2014 Mr. Desai emailed Captain Clamser stating:

23

24

“Here is the latest. We have top resources looking into this. Please don’t

forward this email, its internal.”

25

26 The internal email stated, “Jim Rice is working on a report that will allow us to be

27 proactive moving forward to identify calls that should not be recorded.”

28

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1 63. On November 13, 2015 there was an email exchange between Captain

2 Clamser and Kris Alderman in response to The Intercept article as follows:

3

4

Kris Alderman: “You may or may not have received notice of the media report

5

attached regarding private calls released to the public. Please see our formal

6

response and additional information about what we are doing moving forward

7

with the incident.”

8

Captain Clamser: “Thank you for the information. Can you let me know if any

9

of the calls that were released are from San Diego?”

10

11

Kris Alderman: “They were not, we are in the clear [emphasis added]. I have

12

another release coming sometime today.”

13

64. The contents of the above-described emails demonstrate with

14 particularity (who, what, when, and where) private attorney-client phone calls were

15 listened in on and recorded without permission and that Securus’ tried to conceal

16 these facts.

17

65. There is no inquiry required to be answered as to any individual phone

18 call; Securus knows and has identified them, who they were to, and who the parties

19 were. There is no issue regarding the private nature of these calls; Securus has

20 marked and identified them private. And, the recorded calls can easily be identified

21 by Securus; they recorded and compiled them.

22

66. The particularized facts evidenced by, without limitation, the email

23 contents set forth above are:

24 a. Since 2008, San Diego county criminal defense attorneys have been told

25

verbally and in writing that if they placed their phone numbers in a “Do Not

26

Record” database, their phone conversations would not be recorded;

27 b. From at least April 1, 2013 through August 5, 2014 Securus recorded attorney

28

phone numbers and calls that were set as private numbers in the Securus

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1

system that should not have been recorded and that were expressly requested

to be used for private conversations and the seeking and giving of professional 2
legal advice and information between attorneys and their clients;

3

4 c. Commencing on March 25, 2014, Securus was expressly notified of the dates,

identifiers, numbers, lengths of calls, privatization status, and other specific

5

identifying information at least 22 “additional” examples out of 15,000 such

6

recordings;

7

d. From March 25, 2014 until at least August 5, 2014 Securus knowingly

8

continued to monitor and record attorney-client conversations without

9

permission or warning on attorney phone numbers that were set as private

10

numbers in the Securus system that should not have been recorded and that

11

were expressly requested to be used for private conversations and the seeking

and giving professional legal advice and information; 12

13 e. From March 25, 2014 through August 21, 2014 Securus “purged” one or more

14

lists of phone numbers, lists of calls, and actual recordings of illegally

recorded conversations seeking and giving professional legal advice and

15

information that were set and known to be private; and

16

17 f. On November 13, 2015, Securus made a conscious decision to conceal, suppress, and cover-up the illegal recordings stating it was “in the clear.”
18

19

67. Securus knew these calls were being recorded unlawfully and covered it

20 up by suppressing and concealing the true facts. Securus had a duty and was bound to

21 disclose its unlawful eavesdropping and recording due to its superior and exclusive

22 knowledge of the true facts which were not known or reasonably accessible to

23 Plaintiffs and Class Members, and its express representations that it would follow all

24 local, state, and federal laws.

25

68. Instead, Securus actively concealed, suppressed, omitted, and failed to

26 disclose the true facts concerning the recording, storage, and security of private,

27 confidential, and privileged attorney-client phone calls with the intent to induce

28

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1 Plaintiffs and Class Members to continue to purchase Securus’ communications

2 services.

3

69. Plaintiffs and Class Members were unaware of these suppressed and

4 omitted material facts at the time they used the Securus system. Plaintiffs and Class

5 Members relied on the truthfulness and reliability of the statements made by Securus.

6 Plaintiffs and Class Members did not know, or have any reason to know, of these facts,

7 conditions or circumstances. If they had known the true facts at the time of their

8 telephone calls, Plaintiffs and Class Members would not have used or paid for Securus’

9 services as they did for their attorney-client communications and would have taken

10 action sooner to assert and protect their privacy rights.

11

70. Plaintiffs and Class Members did not discover, and could not have

12 discovered with any amount of reasonable diligence, the true facts regarding Securus’

13 recording of their private attorney-client calls on or before March 3, 2016 when

14 approximately 2,330 emails between the Sheriff’s office and Securus’ were published

15 in response to a California Public Records Act request. Plaintiffs and Class Members

16 were ignorant of the true facts regarding Securus’ recording of their private attorney-

17 client calls, and lacked the ability to have earlier discovered the true facts, until March

18 3, 2016 when the emails were published.

19

71. Defendant’s acts, omissions, and concealments have rendered

20 unavailable and futile any other remedies which could have been pursued or exhausted.

21 Plaintiffs and Class Members have suffered, and will continue to suffer, irreparable

22 harm by its very definition because their constitutional, statutory, and common law

23 protected privacy rights and interests have been, and continue to be, violated by the

24 actual and threatened intrusion and invasion thereof by Defendant.

25 72. Not even an award of damages following Plaintiffs’ delayed discovery of

26 the illegal recordings can undo the irreparable harm suffered, and there neither was nor 27 is any other remedy available to Plaintiffs and Class Members to pursue or exhaust that 28 would not be futile.

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1

Plaintiffs Have Suffered Individualized Actual Concrete Injury in Fact

2 73. The United States Supreme Court has characterized the sixth

3 amendment’s guarantee of assistance of counsel in all criminal prosecutions as a

4 right that is fundamental to library and justice. Communication between an attorney

5 and his client must be free and open and remain confidential for the right to effective

6 assistance of counsel to have any meaning.

7 74. Only through confidential communication can both the attorney and the

8 client can make informed choices about the preparation and conduct of the client’s

9 defense. If the government can obtain damaging information from counsel,

10 defendants will not confide in their lawyers. The predictable result would be to

11 undermine the quality of the legal representation. Only through free, open, and

12 confidential communication can an attorney provide optimal legal representation.

13 75. This is not a case of “no harm, no foul.” Plaintiffs and the Class 14 Members paid for private phone calls that were eavesdropped on and recorded by 15 Securus, and which invaded their legally, statutorily, and constitutionally protected 16 interests of the right to privacy and the right to effective assistance of counsel. 17 Plaintiffs and the Class members would not have paid for or made these types of 18 phone calls, or would not have paid as much for such compromised phone calls, had 19 they known the truth about Securus’ eavesdropping and recording. 20 76. This in and of itself is concrete, particularized, actual harm and injury. 21 Unfortunately, and even more importantly, the actual and imminent harm inflicted 22 on Plaintiffs and the Class Members does not start and end with the potentially 23 hundreds of millions of dollars of tangible damage caused by Securus’ conduct. 24 77. As an example, without limitation, of both the tangible and intangible

25 harm caused by Securus conduct, on or about June 17, 2016, Plaintiff Elliott received

26 a collect call from a detainee who was in the Sheriff’s custody in county jail. Mr. 27 Elliott, now being aware that his prior phone calls with detainees had been 28 eavesdropped on, and uncertain about the privacy of his phone calls, including

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1 without limitation this particular call, was faced with the Hobbesian choice of either: 2 (a) paying for using an insecure phone line with a detainee for a conversation in a 3 guarded exchange of limited, closed, and compromised information and advice; (b) 4 paying for having a free, open, and confidential communication recorded and used 5 against him and a client; or (c) not accepting or paying for the call and either 6 foregoing communication entirely, or devoting significant time, cost, expense, and 7 effort to visit the detainee and only exchange information and give legal advice in 8 person. Plaintiff Elliott and the Attorney Class Members are suffering the same 9 imminent harm in connection with every Securus phone system call to or from a 10 detainee in the custody of law enforcement. 11 78. The detainee, on the other hand, without limitation, is and was faced 12 with the proposition of either: (a) having his constitutionally protected right to 13 effective assistance of counsel illegally compromised; or (b) incurring fees and 14 expenses for Mr. Elliott to make a delayed trip to jail to securely visit him in person, 15 thereby turning a ten-minute phone call into a three-hour trip and jeopardizing his 16 right to timely assistance of counsel. 17 79. Plaintiffs and the Class Members have suffered real-world, actual, 18 concrete harm by, without limitation: (a) paying for calls they otherwise would not 19 have paid for had they know of Securus’ conduct; and (b) having their legally 20 protected rights to privacy and effective assistance of counsel invaded. The Attorney 21 Class and Current Detainee Class is presently facing the same imminent real, actual, 22 and concrete harm and injury from Securus’ concealment of its illegal conduct and 23 its failure to redress the harm. 24 80. Plaintiff Elliott and the Attorney Class Members are presently suffering 25 a real, actual, imminent, and concrete harm and injury traceable to Securus’ conduct 26 resulting from the uncertainty and confusion of having their phone calls with 27 attorneys recorded by: (a) paying for using an insecure phone line for a client 28 conversation in a guarded exchange of limited, closed, and compromised
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FIRST AMENDED COMPLAINT

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1 information and advice, on the one hand; or (b) on the other hand: (1) paying for 2 having free, open, and confidential communication recorded and used against them 3 and their clients and compromising not only the communication, but also the 4 ultimate success or failure of the defense and therefore the attorneys’ reputation and 5 livelihood; (2) not paying for or accepting phone calls and devoting significant time, 6 cost, expense, and effort to make in person visitations, thereby diminishing and 7 diverting attorney income and resources; (3) subjecting themselves and their 8 reputations to damage from the diminished effectiveness of their professional 9 assistance in the defense of their clients through limitations on their 10 communications, exchange of information, advice; and (4) changing and/or 11 compromising defense strategies in connection with the eavesdropping and 12 recording of confidential communications with their clients. 13 81. The total number of private phone calls between detainees and their 14 lawyers recorded without permission or warning is currently unknown, but the 15 recording of private attorney-client calls appears endemic to the Securus system on a 16 California-wide, and indeed a nationwide, basis. Based on the contents of emails set 17 forth above, it appears there were at least 15,000 such calls illegally recorded between 18 April 1, 2013 and June 19, 2014 in San Diego county alone. 19 82. Securus, though, can tell us how many private calls were unlawfully 20 recorded. Securus not only brags in its promotional materials, in its proposals, and in 21 its contracts that it places this information and law enforcements “fingertips,” but also 22 admits in the content of the emails set forth above that it has the capability to query all 23 the private numbers which attorneys affirmatively “privatized” and which Securus 24 knew they did not have permission to record to see: (a) if any such numbers were in 25 fact being recorded; and (b) how many of such private calls were in fact recorded. 26 83. Securus’ ability to identify calls marked private which they did not have 27 permission to record, but which they did in fact record as further evidenced by Mr. 28 Jones’ declaration filed on or about July 5, 2016 (ECF No. 4-1).
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1 84. In addition to San Diego county (population 3.2M), Securus also does 2 business in Riverside county (population 2.2M), San Bernardino county (populations 3 2M), San Mateo county (population 700K), and other California counties. In all, 4 Securus claims to serve 70 county detention facilities in California alone. Based on an 5 extrapolation of the 15,000 illegally recorded calls in San Diego county searched by 6 Securus, as well as the Missouri statistics, the potential number of private attorney7 client phone calls unlawfully recorded by Securus is staggering, with well over 8 500,000 calls estimated per year made just to the Public Defenders’ offices in the four 9 counties listed above. 10 85. Securus has been wrongly and unjustly enriched by payments illegally 11 collected by Securus, and the retention of such payments is unfair and unlawful given

12 the true facts regarding the eavesdropping, listening to, recording, storage, disclosure,

13 and security of the conversations between Plaintiffs, Class Members, and detainees

14 and their attorneys who used the Securus system. Securus should not be allowed to

15 retain the proceeds from the benefits conferred upon it by Plaintiffs, Class Members,

16 and attorney-client users of the Securus system.

17

PLAINTIFFS’ EXPERIENCES

18

Plaintiff Romero

19 86. Plaintiff Juan Romero is a resident of San Diego, California and the

20 county of San Diego who formerly was a detainee and prisoner of, without limitation,

21 the San Diego County George Bailey Detention Facility, at various times from August

22 15, 2012 through May 6, 2016. During the Class Period, Mr. Romero used the

23 Securus phone systems in private conversations with his attorneys. Mr. Romero’s

24 attorneys’ phone conversations with detainees were recorded. On information and

25 belief, Securus recorded Mr. Romero’s private, confidential, and privileged phone calls

26 with his attorneys without warning to, or permission from, all parties. 27 28

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1

87. Neither Plaintiff Romero nor his attorneys have received any notice of

2 the recording of their phone calls. Securus’ unlawful recordings compromised the

3 private, confidential, and privileged conversations of Mr. Romero and his lawyers.

4

Plaintiff Tiscareno

5

88. Plaintiff Frank Tiscareno is a resident of Menifee, California and the

6 county of Riverside who formerly was a detainee and prisoner of, without limitation,

7 the San Diego County Central Jail, from February 14, 2013 through February 25,

8 2013 and October 8, 2013 and September 26, 2015. During the Class Period, Mr.

9 Tiscareno used the Securus phone systems in private conversations with his attorney.

10 Mr. Tiscareno’s attorney’s phone conversations with detainees were recorded. On

11 information and belief, Securus recorded Mr. Tiscareno’s private, confidential, and

12 privileged phone calls with his attorney without warning to, or permission from, all

13 parties.

14

89. Neither Plaintiff Tiscareno nor his attorney have received a notice of

15 the recording of their phone calls. Securus’ unlawful recordings compromised the

16 private, confidential, and privileged conversations of Mr. Tiscareno and his lawyer.

17

Plaintiff Elliott

18 90. Plaintiff Kenneth Elliott is a resident of San Diego, California and the

19 county of San Diego who is a licensed member of the California Bar and a criminal

20 law attorney practicing in San Diego county. During the Class Period and continuing

21 to this day, Mr. Elliott used, and continues to use, the Securus phone system in private

22 conversations with his clients to communicate and give professional advice, and to

23 both give and receive information in connection with the legal representation of his

24 clients while such clients are in the physical custody of the Sheriff.

25 91. On or about July 10, 2008, Mr. Elliott informed the Sheriff he was not

26 giving permission to have his telephone calls with detainees and prisoners recorded 27 by requesting his three office telephone numbers and two mobile phone numbers be 28 placed in the “Do Not Record” database and be privatized. On July 10, 2008,

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1 Detective David Hale of the Sheriff’s office wrote Mr. Elliott and stated: “The

2 numbers you requested were placed into the database as privatized.”

3 92. Mr. Elliott’s private and privileged attorney phone conversations with

4 detainees were recorded, as evidenced by the contents of the emails set forth above.

5 Securus recorded his private, confidential, and privileged phone calls with his clients

6 without warning to, or permission from, all parties.

7

93. Plaintiff Elliott did not give permission for, and was neither warned of

8 nor received notice of, the recording of his private and privileged phone calls with

9 his clients. Securus’ unlawful recordings compromised, and continue to

10 compromise, the private, confidential, and privileged conversations of Mr. Elliott

11 and his detainee clients.

12

CLASS ACTION ALLEGATIONS

13

94. Plaintiffs bring this action pursuant to Federal Rule of Civil Procedure

14 23 on behalf of themselves and all Members of the “Attorney Class,” preliminarily

15 defined as:

16

The Attorney Class

17

All attorneys: (a) whose conversation(s), or any portions thereof were

18

listened to, eavesdropped on, and/or recorded by Securus from July 10, 2008

19

to the applicable opt-out date, inclusive: (b) without permission of all parties

to such conversation; (c) by means of an electronic device; (d) with a person

20

for whom they were serving as an attorney; and (e) while such person was in

21

the physical custody of a law enforcement officer or other public officer, or

22

who was on the property of a law enforcement agency or other public agency

23

in California.

24 Such persons are collectively referred to herein individually as an “Attorney Class

25 Member” and collectively as the “Attorney Class” or “Attorney Class Members.”

26

95. Additionally, Plaintiffs bring this action pursuant to Federal Rule of

27 Civil Procedure 23 on behalf of themselves and all Members of the “Former

28 Detainee Class,” preliminarily defined as:

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1

The Former Detainee Class

2

All persons who were physically in California, and: (a) whose

3

conversation(s), or any portions thereof with that person’s attorney(s) were

listened to, eavesdropped on, and/or recorded by Securus from July 10, 2008

4

to the applicable opt-out date, inclusive: (b) without permission of all parties

5

to such conversation; (c) by means of an electronic device; (d) while such

6

persons were in the physical custody of a law enforcement officer or other

7

public officer, or who were on the property of a law enforcement agency or

other public agency.

8

9

96. Additionally, Plaintiffs bring this action pursuant to Federal Rule of

10 Civil Procedure 23 on behalf of themselves and all Members of the “Current

11 Detainee Class,” preliminarily defined as:

12

The Current Detainee Class

13

All persons in California, who currently, and on the applicable opt-out date,

14

inclusive, are: (a) in the physical custody of a law enforcement officer or

15

other public officer, or who is on the property of a law enforcement agency

16

or other public agency, in a facility served by Securus as a

telecommunications service provider; (b) whose conversation(s), or any

17

portions thereof with their attorney(s) were listened to, eavesdropped on,

18

and/or recorded by Securus from July 10, 2008 to the applicable opt-out date,

19

inclusive; (c) without permission of all parties to such conversation; (d) by

20

means of an electronic device; and (e) while such persons were in the physical

custody of a law enforcement officer or other public officer, or who were on

21

the property of a law enforcement agency or other public agency in

22

California.

23

24

97. The Classes described in this Complaint may be jointly referred to as

25 the “Class” and proposed Members of the Classes may be jointly referred to as

26 “Class Members.”

27

98. Excluded from the Class are the Defendant herein, law enforcement

28 agencies and personnel, members of the foregoing persons’ immediate families and

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1 their legal representatives, heirs, successors, or assigns, and any entity or person in

2 which Defendant has or had a controlling or supervisory interest or control over at

3 all relevant times.

4

99. Plaintiffs satisfy the numerosity, commonality, typicality, adequacy,

5 and predominance prerequisites for suing as representative parties pursuant to Rule

6 23 of the Federal Rules of Civil Procedure.

7

100. Numerosity. The exact number of proposed Class Members is

8 currently not known, but is believed to consist of hundreds if not thousands of

9 former or current Securus detainees and attorneys who have used, or are using,

10 Securus’ phone system and have had their private attorney-client phone

11 conversations recorded without their permission or warning, making joinder of each

12 individual Class Member impracticable.

13

101. Commonality. Common questions of law and fact exist for the

14 proposed Class’ claims and predominate over questions affecting only individual

15 Class Members. Common questions include, without limitation:

16 a. Whether the recording of a telephone call between a detainee and his or her

17

or her attorney without permission or warning constitutes a violation of each

18

Class Member’s CIPA rights, common law tort of invasion of privacy rights ,

19

and other statutory and common law rights as set forth herein;

20 b. What monitoring, limiting, and supervisory procedures and practices should

21

Securus be required to implement to ensure ongoing protection of each

22

Attorney Class Member’s and Current Detainee Class Member’s CIPA or

23

other legal rights and as part of any injunctive relief ordered by the Court;

24 c. Whether Securus violated the Class Members’ rights under California Penal

25

Code Section 636 by recording of a telephone call between a detainee and his

26

or her attorney without permission or warning;

27 d. Whether Securus acted negligently, fraudulently, and unlawfully by, without

28

limitation: (i) failing to adequately protect Class Members’ privacy rights;

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1

(ii) eavesdropping on, listening in to, recording, disclosing, and/or storing

2

private, confidential, and privileged telephone calls between detainees and

3

their attorneys without permission of all parties; (iii) failing to follow all

4

applicable laws; (iv) failing to notify, warn, or get permission of Plaintiffs and

5

Class Members, at the point of call or otherwise, to record the call; (v) failing

6

to notify Plaintiffs and Class Members after the recording of private telephone

7

calls and conversations between a detainee and his or her attorney without

8

permission or warning that the call had been recorded; and (vi) failing to

9

maintain adequate monitoring, limiting, and supervisory procedures, policies,

10

and practices;

11 e. Whether Plaintiffs and Class Members may obtain damages, restitution,

12

disgorgement, declaratory, and injunctive relief against Securus; and

13 f. What monitoring, limiting, supervisory, policies procedures and practices,

14

security procedures, and recording warning and notification procedures

15

Securus should be required to implement as part of any injunctive relief

16

ordered by the Court.

17

102. Typicality. Plaintiffs’ claims are typical of the claims of the proposed

18 Class because, among other things, Plaintiffs and Class Members sustained similar

19 injuries and statutory damages as a result of Securus’ uniform wrongful conduct and

20 their legal claims all arise from the same core Securus practices.

21

103. Adequacy. Plaintiffs will fairly and adequately protect the interests of

22 the Class. Their interests do not conflict with Class Members’ interests and they

23 have retained counsel competent and experienced in complex, privacy, and class

24 action litigation to vigorously prosecute this action on behalf of the Class. In

25 addition to satisfying the prerequisites of Rule 23(a), Plaintiffs satisfy the

26 requirements for maintaining a class action under Rule 23(b)(3).

27

104. Common questions of law and fact predominate over any questions

28 affecting only individual Class Members and a Class action is superior to individual

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1 litigation. The amount of damages available to individual Plaintiffs are insufficient

2 to make litigation addressing Securus’ conduct economically feasible in the absence

3 of the Class action procedure. Individualized litigation also presents a potential for

4 inconsistent or contradictory judgments, and increases the delay and expense to all

5 parties and the court system presented by the legal and factual issues of the case. By

6 contrast, the Class action device presents far fewer management difficulties and

7 provides the benefits of a single adjudication, economy of scale, and comprehensive

8 supervision by a single court.

9

105. In addition, Class certification is appropriate under Rule 23(b)(1) or

10 (b)(2) because:

11 a. the prosecution of separate actions by the individual Members of the

12

proposed Class would create a risk of inconsistent or varying adjudication

13

which would establish incompatible standards of conduct for Securus;

14 b. the prosecution of separate actions by individual Class Members would create

15

a risk of adjudications with respect to them which would, as a practical matter,

16

be dispositive of the interests of other Class Members not parties to the

17

adjudications, or substantially impair or impede their ability to protect their

18

interests; and

19 c. Securus has acted or refused to act on grounds that apply generally to the

20

proposed Class, thereby making final injunctive relief or declaratory relief

21

described herein appropriate with respect to the proposed Class as a whole.

22

FIRST CAUSE OF ACTION

23

Violation of the California Invasion of Privacy Act

24

Cal. Penal Code §§ 630, et seq.

25

(On Behalf of the Plaintiffs Individually and the Class)

26

106. Plaintiffs and Class Members incorporate by reference the foregoing

27 allegations.

28

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1

107. The California Invasion of Privacy Act, Cal. Penal Code §§ 630, et seq.

2 (“CIPA”), states that: “The Legislature hereby declares that advances in science and

3 technology have led to the development of new devices and techniques for the

4 purpose of eavesdropping upon private communications and that the invasion of

5 privacy resulting from the continual and increasing use of such devices and

6 techniques has created a serious threat to the free exercise of personal liberties and

7 cannot be tolerated in a free and civilized society.”

8

108. Plaintiffs and Class Members made and received private, confidential,

9 and privileged attorney-client telephone calls which were recorded by Securus

10 without permission or consent of all parties and without disclosure to both parties

11 that the phone calls may be, or were being, recorded.

12

109. California Penal Code Section 636(a) prohibits “[e]very person” from

13 ‘without permission from all parties to the conversation, eavesdrop[ping] on or

14 record[ing], by means of an electronic device, a conversation, or any portion thereof,

15 between a person who is in the physical custody of a law enforcement officer or

16 other public officer, or who is on the property of a law enforcement agency or other

17 public agency, and that person's attorney, religious adviser, or licensed physician...”

18

110. Pursuant to California Penal Code Section 632(b), Securus is a

19 “person.”

20

111. Securus violates the CIPA when it listens to, eavesdrops, or records,

21 stores, and discloses, without permission private, privileged, and confidential phone

22 calls made and received by Plaintiffs and Class Members without permission of all

23 parties.

24

112. Securus does not have express or implied permission of all parties to

25 eavesdrop upon or record private, confidential, and privileged telephone calls to or

26 from attorneys with their clients without warning. To the contrary, Securus 27 expressly undertook a duty and obligation to Plaintiffs and Class Members when it 28 told them their calls would not be recorded. In fact, Securus was expressly told it

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1 did not have permission to record Plaintiffs and the Class’ calls because the phone

2 numbers recorded were in Securus “Do Not Record” database and “privatized” list.

3

113. Plaintiffs and Class Members did not, and do not, consent to or give

4 permission for, expressly or impliedly, Securus’ eavesdropping upon and recording

5 of their private, confidential, and privileged phone calls between attorneys and their

6 clients. Securus does not disclose to or warn Plaintiffs and Class Members that their

7 private, confidential, and privileged calls may be recorded, stored, and disclosed to

8 third parties. Plaintiffs and Class Members do not know or expect, or have any

9 reason to know or suspect, that Securus records their private, confidential, and

10 privileged phone calls between attorneys and their clients.

11

114. Neither Plaintiffs nor the Class Members did discover, or could have

12 discovered with any amount of reasonable diligence, the true facts regarding Securus’

13 recording of their private attorney-client calls until March 3, 2016 when approximately

14 2,330 emails between the Sheriff’s office and Securus’ were published in response to

15 a California Public Records Act request. Plaintiffs and the Class Members were

16 ignorant of the true facts regarding Securus’ recording of their private attorney-client

17 calls, and lacked the ability to have earlier discovered the true facts, until March 3,

18 2016 when the emails were published. Discovery of the true facts did not actually

19 occur, and could not have occurred, until after any applicable statutes of limitation,

20 including the one-year statute of limitations for violations of the CIPA.

21

115. California Penal Code Section 637.2 provides: “Any person who has

22 been injured by a violation of this chapter may bring an action against the person

23 who committed the violation for the greater of the following amounts:

24

(a) Five thousand dollars ($5,000).

25

(b) Three times the amount of actual damages, if any, sustained by the

26 Plaintiffs.

27

(c) Any person may, in accordance with Chapter 3 (commencing with

28 Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, bring an action to

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1 enjoin and restrain any violation of this chapter, and may in the same action seek

2 damages as provided by subdivision (a).

3

(d) It is not a necessary prerequisite to an action pursuant to this section that

4 the Plaintiff has suffered, or be threatened with, actual damages.”

5 116. Accordingly, Plaintiffs and the Class request that the Court issue

6 declaratory relief declaring Securus’ practice of eavesdropping on, listening to,

7 recording, disclosing, or using private, confidential, and privileged between detainees

8 and their attorney without permission of all parties unlawful.

9

117. Plaintiffs and the Attorney Class and Current Detainee Class request the

10 Court enter an injunction requiring Securus to cease the unlawful practices described

11 herein and enjoining Securus from eavesdropping on, listening to, recording,

12 disclosing, or using private, confidential, and privileged communications between

13 detainees and their attorneys without permission of all parties.

14

118. Plaintiffs and the Class Members request the Court order Securus to

15 identify, seek, obtain, encrypt, and ultimately destroy at the conclusion of this action

16 all existing recordings in their possession or the possession of third parties to whom

17 they have given access or disclosed unlawfully recorded communications.

18

119. Plaintiffs and the Attorney Class and Current Detainee Class request that

19 the Court enter an injunction ordering that Securus: (a) engage a third party

20 ombudsman as well as internal compliance personnel to monitor, conduct test, and

21 audit Securus’ safeguards and procedures on a periodic basis; (b) audit, test, and train

22 its internal personnel regarding any new or modified safeguards and procedures; (c)

23 conduct regular checks and tests on its safeguards and procedures; (d) periodically

24 conduct internal training and education to inform internal personnel how to identify

25 violations when they occur and what to do in response; and (e) meaningfully educate

26 its former and current users about their privacy rights by, without limitation, pre27 recorded statements at the beginning of recorded phones calls, as well as any steps 28 they must take to safeguard such rights.

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1 Plaintiffs and the Class Members request the Court enter an order pursuant to

2 California Penal Code Section 637.2 awarding statutory damages of $5,000 to

3 Plaintiffs and each Class Member for each phone call unlawfully recorded without

4 permission of all parties.

5

SECOND CAUSE OF ACTION

6

Violation of California’s Unfair Competition Law

7

Cal. Bus. & Prof. Code §§ 17200, et seq.

8

(On Behalf of Plaintiffs Individually and the Class)

9 120. Plaintiffs and Class Members incorporate the above allegations by

10 reference.

11 121. California’s Unfair Competition Law (“UCL”) prohibits unfair

12 competition, defined as “any unlawful, unfair or fraudulent business act or practice

13 and unfair, deceptive, untrue or misleading advertising and any act prohibited by 14 [California’s False Advertising Law].” Cal. Bus. & Prof. Code § 17200. 15 122. Defendant willfully violated, and continues to violate, the “unlawful” 16 prong of the UCL by violating the California Invasion of Privacy Act, Cal. Penal 17 Code § 636, and other applicable statutes and laws alleged herein. 18 123. Defendant willfully violated, and continues to violate, the “fraudulent” 19 prong of the UCL through misrepresentations, omissions, and non-disclosures which 20 are false, misleading, and have a tendency to deceive, and did deceive, Plaintiffs, 21 Class Members, and the general public, as detailed herein. 22 124. Defendant willfully violated, and continues to violate, the “unfair” 23 prong of the UCL by gaining unjust profits from the surreptitious eavesdropping on 24 and recording and dissemination of Plaintiffs’ and Class Members’ private attorney-

25 client phone calls without their permission or knowledge and in violation of their

26 statutorily protected privacy rights. 27 125. The acts, omissions, misrepresentations, and non-disclosures of 28 Defendant, as described herein, further constitutes “unfair” business acts and

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1 practices under the UCL in that Defendant’s conduct offends public policy against 2 invasion of privacy and seeks to profit and capitalize on the need for attorneys and 3 their clients’ for timely, private, and confidential exchange of information and full, 4 frank, and informed advice. 5 126. Plaintiffs and Class Members would not have paid for and used the 6 Securus telephone system for private and privileged phone conversations as they did, 7 or would not have paid as much for them, had they known the true facts about the 8 eavesdropping and recording. 9 127. Neither Plaintiffs nor the Class Members did discover, or could have 10 discovered with any amount of reasonable diligence, the true facts regarding Securus’ 11 recording of their private attorney-client calls until March 3, 2016 when approximately 12 2,330 emails between the Sheriff’s office and Securus’ were published in response to 13 a California Public Records Act request. Plaintiffs and the Class Members were 14 ignorant of the true facts regarding Securus’ recording of their private attorney-client 15 calls, and lacked the ability to have earlier discovered the true facts, until March 3, 16 2016 when the emails were published. Discovery of the true facts did not actually 17 occur, and could not have occurred, until after any applicable statutes of limitation, 18 including the four-year statute of limitations for unfair competition law and illegal 19 business practices. 20 128. As a direct and proximate result of Defendant’s unlawful, unfair, and 21 fraudulent business practices, Plaintiffs and putative Class Members have suffered 22 injury, including but not limited to, monetary loss in connection with purchases of 23 services they would not have purchased absent Defendant’s unlawful conduct and 24 false and/or misleading representations and omissions, as well as invasion of their 25 statutorily protected privacy rights. 26 129. Accordingly, Plaintiffs and the Attorney Class Members and Current 27 Detainee Class Members are entitled to, and hereby seek, an order of this Court 28 enjoining Defendant from continuing to conduct business through unlawful, unfair,
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1 and/or fraudulent acts and practices, and to commence a corrective advertising

2 campaign pursuant to Section 17203 of the UCL.

3 130. Plaintiffs and Class Members are further entitled to, and hereby seek an

4 order for disgorgement and restitution of all monies acquired from the sales of the

5 Securus’ services which were unjustly acquired through acts of unlawful, unfair,

6 and/or fraudulent competition by Defendant, as well as any other further equitable

7 relief this Court may deem necessary, just, and proper under the circumstances.

8 Additionally, Plaintiffs and the Class seek attorneys’ fees and costs as allowed by

9 statute. See e.g., Cal. Civ. Proc. Code § 1021.5.

10

THIRD CAUSE OF ACTION

11

Fraudulent Concealment/Intentional Omission of Material Facts

12

Cal. Civ. Code §§ 1709, 1710(3)

13

(On behalf of Plaintiffs Individually and the Class)

14 131. Plaintiffs and Class Members incorporate by reference the foregoing

15 allegations.

16 132. California Civil Code Section 1709 provides that “[o]ne who willfully

17 deceives another with intent to induce him to alter his position to his injury or risk,

18 is liable for any damage which he thereby suffers.” “Deceit,” within the meaning of

19 Section 1709, includes “[t]he suppression of a fact, by one who is bound to disclose

20 it, or who gives information of other facts which are likely to mislead for want of

21 communication of that fact.” Cal. Civ. Code § 1710(3).

22 133. Securus intentionally and knowingly concealed material facts from

23 Plaintiffs and Class Members that were known only to Securus prior to Plaintiffs and

24 Class Members’ purchases and use of the Securus telephone system to make private

25 attorney-client calls.

26 134. Securus intentionally and knowingly concealed the aforementioned 27 material facts from Plaintiffs and Class Members with the intent to induce them to 28

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1 purchase services from and use, and continue to purchase services from and use, the 2 Securus phone system to make private attorney-client calls. 3 135. Neither Plaintiffs nor the Class Members did discover, or could have 4 discovered with any amount of reasonable diligence, the true facts regarding Securus’ 5 recording of their private attorney-client calls until March 3, 2016 when approximately 6 2,330 emails between the Sheriff’s office and Securus’ were published in response to 7 a California Public Records Act request. Plaintiffs and the Class Members were 8 ignorant of the true facts regarding Securus’ recording of their private attorney-client 9 calls, and lacked the ability to have earlier discovered the true facts, until March 3, 10 2016 when the emails were published. Discovery of the true facts did not actually 11 occur, and could not have occurred, until after any applicable statutes of limitation, 12 including the three-year statute of limitations for concealment. 13 136. Securus had, and has, a duty to disclose the concealed information 14 because Plaintiffs and Class Members did not know of the concealed facts prior to 15 purchasing and using the Securus telephone system to make private attorney-client 16 calls, nor could they reasonably be expected to learn or discover such concealed facts 17 prior thereto. Further, Securus does not disclose that it gives access to third parties 18 to eavesdrop on, and listen to the recordings of, private attorney-client phone calls. 19 In fact, it affirmatively represents to the contrary. 20 137. Plaintiffs and Class Members would not have purchased or used the 21 Securus phone system to make private attorney-client calls, or would not have paid 22 as much for telephone calls, had they known of the concealed information. 23 138. As a direct and proximate result of Securus’ fraudulent concealment of 24 material facts, Plaintiffs and Class Members have suffered injury, including but not 25 limited to, monetary loss in connection with purchases of products and services they 26 would not have purchased absent Securus’ fraudulent omissions and non27 disclosures, as well as invasion of their statutorily protected privacy rights. 28
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1 139. Accordingly, Plaintiffs and Class Members are entitled to, and hereby

2 seek, actual damages, punitive damages, reasonable attorneys’ fees and costs under

3 Cal. Civ. Proc. Code § 1021.5, and any and all further equitable relief that this Court

4 deems appropriate.

5

FOURTH CAUSE OF ACTION

6

Fraud and Intentional Misrepresentation

7

Cal. Civ. Code §§ 1709, 1710(1)

8

(On behalf of Plaintiffs Individually and the Class)

9 140. Plaintiffs and Class Members incorporate the above allegations by

10 reference.

11 141. California Civil Code Section 1709 provides that “[o]ne who willfully

12 deceives another with intent to induce him to alter his position to his injury or risk,

13 is liable for any damage which he thereby suffers.” 14 142. “Deceit,” within the meaning of Section 1709, includes “[t]he 15 suggestion, as a fact, of that which is not true, by one who does not believe it to be 16 true.” Cal. Civ. Code § 1710(1). 17 143. Securus intentionally and knowingly misrepresented and/or suggested 18 untrue or misleading facts to Plaintiffs and Class Members concerning its telephone 19 services, including but not limited to, the representation that it complies with all 20 governing federal and state privacy laws. 21 144. Securus intentionally and knowingly misrepresented and/or suggested 22 the aforementioned untrue or misleading facts to Plaintiffs and Class Members with 23 the intent to induce them to purchase and use the Securus telephone system. 24 145. Securus’ representations are false and misleading, because Securus

25 does not follow all local, state, and federal laws and does in fact record attorney-

26 client phone calls and track, monitor, record, and disclose Plaintiffs’ and Class 27 Members’ phone calls to third parties for financial gain without their informed 28 consent or knowledge, and in violation of their statutorily protected privacy rights.

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1 146. Securus knew that its representations and suggestions were false and/or 2 misleading when made, or made the representations and suggestions recklessly and 3 without regard for their truth. 4 147. Plaintiffs and Class Members would not have purchased the Securus 5 products and services, or would not have paid as much for them, had they known the 6 truth about Securus’ violation of their statutorily protected privacy rights. 7 148. Neither Plaintiffs nor the Class Members did, or could have discovered 8 with any amount of reasonable diligence, the true facts regarding Securus’ recording 9 of their private attorney-client calls until March 3, 2016 when approximately 2,330 10 emails between the Sheriff’s office and Securus’ were published in response to a 11 California Public Records Act request. Plaintiffs and the Class Members were 12 ignorant of the true facts regarding Securus’ recording of their private attorney-client 13 calls, and lacked the ability to have earlier discovered the true facts, until March 3, 14 2016 when the emails were published. Discovery of the true facts did not actually 15 occur, and could not have occurred, until after any applicable statutes of limitation, 16 including the three-year statute of limitations for fraud. 17 149. As a direct and proximate result of Defendant Securus’ intentional 18 misrepresentations, Plaintiffs and Class Members have suffered injury, including but 19 not limited to, monetary loss in connection with purchases of products and services 20 they would not have purchased absent Securus’ false and/or misleading 21 representations, as well as invasion of their statutorily protected privacy rights. 22 150. Accordingly, Plaintiffs and Class Members are entitled to, and hereby 23 seek, actual damages, punitive damages, reasonable attorneys’ fees and costs under 24 Cal. Civ. Proc. Code § 1021.5, and any and all further equitable relief that this Court 25 deems appropriate. 26 … 27 ... 28 …
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1

FIFTH CAUSE OF ACTION

2

Negligence

3

(On Behalf of Plaintiffs Individually and the Class)

4

151. Plaintiffs and the Class Members incorporate the above allegations by

5 reference.

6

152. In providing telecommunications products and services to Plaintiffs and

7 the Class, Securus owed a duty to exercise reasonable care in safeguarding and

8 protecting private, confidential, and privileged attorney-client phone calls. This duty

9 included, among other things, taking reasonable measures to implement and

10 maintain reasonable procedures to protect the rights of Class Members in compliance

11 with applicable law, including, but not limited to procedures and policies to: (a)

12 supervise, restrict, limit, and determine: (i) whether any conversation between a

13 detainee and his or her attorney is, or was, being recorded; (ii) whether all parties had

14 given their permission to have their conversation recorded; and (iii) whether the

15 conversation is being, or had in fact been, recorded; and (b) how long after discovery

16 of any recordings, whether they were lawfully obtained or not, the list of calls and the

17 recordings themselves should be retained before being “purged” destroyed and notice

18 given to the injured persons; (c) when and how to secure and encrypt any recordings

19 of illegal calls pending notice and destruction; (d) when and how to notify Plaintiffs

20 and the Class Members of the unlawful recordings; and (e) under what circumstances

21 the recordings, whether lawfully obtained or not, may be sold, transferred, reviewed,

22 disclosed, or released to third parties.

23

153. In providing services to the Plaintiffs and the Class, Securus owed them

24 a duty to exercise reasonable care, without limitation in: (a) obtaining permission to

25 record their conversations; (b) adequately securing the privacy of attorney-client

26 telephone calls and the privilege applicable to such calls; and (c) protecting the 27 content of Plaintiffs and the Class’ attorney-client phone calls from unauthorized 28 eavesdropping, listening in, recording, storage, disclosure, and access and use.

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1

154. Securus’ systems, policies, and procedures for handling the private,

2 confidential, and privileged information of attorney-client phone calls were intended

3 to, and did, affect Plaintiffs and the Class. Securus was aware that by providing

4 phone products and services to the attorney-client users of its systems, it had a

5 responsibility to take reasonable measures to protect the phone calls from being

6 eavesdropped on or recorded and not to provide access to law enforcement,

7 prosecutors, or other third parties without restriction.

8

155. The duty Securus owed to Plaintiffs and Class Members to protect their

9 private, confidential, and privileged attorney-client phone calls is also underscored

10 by the California Invasion of Privacy Act, which recognizes the importance of

11 maintaining the confidentiality of attorney-client phone calls and was established to

12 protect individuals from improper recording of such calls.

13

156. Additionally, Securus had a duty to timely disclose to and/or warn

14 Plaintiffs and Class Members that their private, confidential, and privileged calls

15 were, had been, or were reasonably believed to have been recorded. Timely

16 disclosure was necessary and appropriate so that Plaintiffs and Class Members could

17 have, among other things, timely pursue and exhaust available remedies, and

18 undertake appropriate measures to avoid such recordings and prevent or mitigate the

19 risk of unlawful recording and disclosure.

20

157. There is a very close connection between Securus’ failure to take

21 reasonable measures to protect attorney-client users of its systems and the injury to

22 Plaintiffs and the Class. When individuals have their private, confidential, and

23 privileged attorney-client phone calls recorded they: (a) are at risk for improper use

24 of such recordings by law enforcement, prosecutors, and other parties, and of having

25 their privacy rights violated; and (b) need to incur additional costs and expense to

26 protect themselves from such invasions of privacy.

27

158. Securus is legally responsible for such unlawful eavesdropping and

28 recordings and the violations of the privacy rights of the attorney-client users of its

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1 service because it failed to take reasonable privacy and recording measures. If

2 Securus had taken reasonable privacy and recording security measures, private,

3 confidential, and privileged phone calls of attorney-client users of Securus’ products

4 and services would not have been eavesdropped on or recorded.

5

159. The policy of preventing future harm weighs in favor of finding a

6 special relationship between Securus and the Class. Securus’ attorney-client users

7 of its telecommunications products and services count on Securus to keep their

8 attorney-client phone calls private. Indeed, they are captive users. If Defendant is

9 not held accountable for failing to take reasonable privacy security and recording

10 measures to protect the attorney-client users of their system, they will not take the

11 steps that are necessary to protect against future invasions of privacy and rights.

12

160. It was foreseeable that if Securus did not take reasonable security

13 measures, the private, confidential, and privileged attorney-client phone calls of

14 Plaintiffs and Members of the Class would be recorded and unlawfully disclosed.

15 Securus should have known to take precautions to secure such attorney-client calls.

16

161. Securus breached its duty to exercise reasonable care in protecting the

17 private attorney-client phone calls of Plaintiffs and the Class by, without limitation:

18 (a) failing to implement and maintain adequate recording and security measures to

19 safeguard phone calls; (b) failing to monitor its systems to identify unlawful activity;

20 (c) allowing unauthorized recording and access to the private attorney-client phone

21 calls of Plaintiffs and the Class; (d) “purging” such calls and recordings from its call

22 lists without notice to Plaintiffs and the Class; and (e) failing to otherwise prevent

23 unauthorized eavesdropping, recording, listening to, or disclosure of such calls.

24

162. Securus breached its duty to timely warn or notify Plaintiffs and the

25 Class about the unlawful recordings. Securus has failed to issue any warnings to its

26 current and former attorney-client users of its systems affected by the recordings. 27 Additionally, Securus was, or should have been, aware of the unlawful recordings 28 as early as July 10, 2012.

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1 163. Neither Plaintiffs nor the Class Members did discover, or could have

2 discovered with any amount of reasonable diligence, the true facts regarding Securus’

3 recording of their private attorney-client calls until March 3, 2016 when approximately

4 2,330 emails between the Sheriff’s office and Securus’ were published in response to

5 a California Public Records Act request. Plaintiffs and the Class Members were

6 ignorant of the true facts regarding Securus’ recording of their private attorney-client

7 calls, and lacked the ability to have earlier discovered the true facts, until March 3,

8 2016 when the emails were published. Discovery of the true facts did not actually

9 occur, and could not have occurred, until after any applicable statutes of limitation,

10 including the two-year statute of limitations for negligence.

11

164. But for Securus’ failure to implement and maintain adequate measures

12 to protect the privacy and confidentiality of the Plaintiffs and Class Members’

13 attorney-client calls and conversations, and its failure to monitor its systems to

14 identify unlawful recordings and suspicious activity, the private recording of

15 Plaintiffs and Class Members would not have been made, and the Attorney Class

16 and Current Detainee Class would not be at a heightened risk of unlawful recordings

17 in the future.

18

165. Securus’ negligence was a substantial factor in causing harm to

19 Plaintiffs and Class Members and in violating their CIPA and common law privacy

20 rights.

21 166. As a direct and proximate cause and result of Securus’ failure to

22 exercise reasonable care and use reasonable measures to safeguard the private,

23 confidential, and privileged nature of the recorded attorney-client phone calls, such

24 calls of Plaintiffs and the Class attorney-client users of the Securus

25 telecommunications services were eavesdropped on, listened to, recorded, stored,

26 and disclosed, such that unauthorized individuals could use the information to 27 compromise Plaintiffs privacy rights. Plaintiffs and the Class face a heightened risk 28 of such invasions of privacy in the future.

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1

167. Members of the Class have also suffered economic damages, including

2 incurring additional legal costs and expenses and charges for phone calls they would

3 not have otherwise incurred and paid.

4

168. Neither Plaintiffs nor other Class Members contributed to the unlawful

5 conduct set forth herein, nor did they contribute to Securus’ unlawful eavesdropping,

6 listening to, recording, or storage of attorney-client phone calls, nor to the

7 insufficient measures to safeguard the private nature of such calls and conversations.

8

169. Plaintiffs and the Class seek compensatory damages and punitive

9 damages with interest, the costs of suit, attorneys’ fees, and other and further relief

10 as this Court deems just and proper.

11

SIXTH CAUSE OF ACTION

12

Unjust Enrichment

13

(On Behalf of Plaintiffs Individually and the Class)

14 170. Plaintiffs and the Class Members incorporate the above allegations by

15 reference.

16 171. “Under California law, the elements of unjust enrichment are: (1)

17 receipt of a benefit; and (2) unjust retention of the benefit at the expense of another.”

18 Valencia v. Volkswagen Grp. of Am. Inc, No. 15-CV-00887-HSG, 2015 WL

19 4747533, at *8 (N.D. Cal. Aug. 11, 2015). See also, Munoz v. MacMillan, 195 Cal.

20 App. 4th 648, 661 (2011) (“Common law principles of restitution require a party to

21 return a benefit when the retention of such benefit would unjustly enrich the

22 recipient; a typical cause of action involving such remedy is ‘quasi-contract.”)

23 172. “When a plaintiff alleges unjust enrichment, a court may construe the

24 cause of action as a quasi-contract claim seeking restitution.” Astiana v. Hain

25 Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015). “Whether termed unjust

26 enrichment, quasi-contract, or quantum meruit, the equitable remedy of restitution 27 when unjust enrichment has occurred “is an obligation (not a true contract [citation]) 28 created by the law without regard to the intention of the parties, and is designed to

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1 restore the aggrieved party to his or her former position by return of the thing or its 2 equivalent in money.” F.D.I.C. v. Dintino, 167 Cal. App. 4th 333, 346 (2008). 3 173. Plaintiffs and Class Members conferred non-gratuitous benefits upon 4 Defendant by paying for recordings Defendant could resell to law enforcement 5 customers and profits derived therefrom. 6 174. Defendant accepted or retained such benefits with knowledge that 7 Plaintiffs and Class Members did not give permission to have their personal 8 information disseminated to third parties for financial gain. Defendant has been 9 unjustly enriched in retaining the revenues from Plaintiffs and Class Members’ 10 purchases of the Securus’ phone services, which retention under these circumstances 11 is unjust and inequitable because Defendant misrepresented the facts concerning the 12 private nature of their phone calls and recording thereof without their permission or 13 knowledge. 14 175. Plaintiffs and Class Members would not have purchased phone 15 services had they known that Securus was recording, monitoring, collecting, and 16 disseminating their private phone calls to third parties, including law enforcement 17 officials and prosecutors, for financial gain without their permission or knowledge, 18 and in violation of their statutorily protected privacy rights 19 176. Neither Plaintiffs nor the Class Members did discover, or could have 20 discovered with any amount of reasonable diligence, the true facts regarding Securus’ 21 recording of their private attorney-client calls until March 3, 2016 when approximately 22 2,330 emails between the Sheriff’s office and Securus’ were published in response to 23 a California Public Records Act request. Plaintiffs and the Class Members were 24 ignorant of the true facts regarding Securus’ recording of their private attorney-client 25 calls, and lacked the ability to have earlier discovered the true facts, until March 3, 26 2016 when the emails were published. Discovery of the true facts did not actually 27 occur, and could not have occurred, until after any applicable statutes of limitation, 28 including the four-year statute of limitations for unjust enrichment.
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FIRST AMENDED COMPLAINT

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1 177. As a direct and proximate result of Defendant’s false and/or misleading 2 representations, assertions of fact, omissions of material fact, non-disclosures, and 3 illegal listening in on, recording, collecting, and disseminating private telephone 4 calls, Plaintiffs and Class Members have suffered concrete harm and injury, 5 including, but not limited to, monetary loss in connection with purchases of services, 6 and an unconstitutional and illegal intrusion and invasion of their lawfully protected 7 rights of privacy and effective assistance of counsel which they would otherwise not 8 have purchased absent Defendant’s unlawful conduct, as alleged herein. 9 178. Defendant’s retention of the non-gratuitous benefits conferred on them 10 by Plaintiffs and Class Members would be unjust and inequitable. Plaintiffs and Class 11 Members are entitled to seek disgorgement and restitution of wrongful profits,

12 revenue, and benefits conferred upon Defendant in a manner established by this Court.

13 179. Plaintiffs and Class Members are further entitled to, and hereby seek,

14 reasonable attorneys’ fees and costs under Cal. Civ. Proc. Code § 1021.5, as well as

15 any and all further equitable relief that this Court deems appropriate.

16

SEVENTH CAUSE OF ACTION

17

Conversion

18

(On Behalf of Plaintiffs Individually and the Class)

19

180. Plaintiffs incorporate the above allegations by reference.

20 181. Securus willfully interfered with Plaintiffs’ and the Class’ rights to its

21 personal property. Securus willfully interfered as described above the purchase of

22 Securus’ services with full knowledge that that its conduct was illegal and unlawful.

23 182. Plaintiffs and Class Members were the lawful owners of funds and other

24 monies deposited in debit accounts held by Securus. The funds and monies held in

25 these accounts were paid directly to Securus and held for Plaintiffs and Class

26 Members’ account and benefit. As a result of Securus’ wrongful conduct, which 27 includes its collection, taking, and receipt of monies and funds paid for Plaintiffs and 28 the Class’ benefit, Securus has interfered with and converted Plaintiffs and the Class’

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1 ownership interest in, and right to possess, such funds. The funds and monies in the 2 debit accounts and misappropriated are in a specific sum capable of identification 3 and Plaintiffs and the Class have been damaged by Securus’ conversion. 4 183. Neither Plaintiffs nor the Class Members did discover, or could have 5 discovered with any amount of reasonable diligence, the true facts regarding Securus’ 6 recording of their private attorney-client calls until March 3, 2016 when approximately 7 2,330 emails between the Sheriff’s office and Securus’ were published in response to 8 a California Public Records Act request. Plaintiffs and the Class Members were 9 ignorant of the true facts regarding Securus’ recording of their private attorney-client 10 calls, and lacked the ability to have earlier discovered the true facts, until March 3, 11 2016 when the emails were published. Discovery of the true facts did not actually

12 occur, and could not have occurred, until after any applicable statutes of limitation,

13 including the three-year statute of limitations for conversion.

14

PRAYER FOR RELIEF

15

WHEREFORE, Plaintiffs, individually and on behalf of the proposed Class,

16 request the Court:

17

a. Certify this case as a Class action on behalf of the Class defined above,

18 appoint Juan Romero, Frank Tiscareno, and Kenneth Elliott as Class representatives,

19 and appoint the Law Offices of Ronald A. Marron, APLC and Robert Teel as Class

20 counsel;

21

b. Award declaratory and other equitable relief as is necessary to protect

22 the interests of Plaintiffs and Class Members;

23

c. Award injunctive relief as is necessary to protect the interests of

24 Plaintiffs and Attorney Class Members and Current Detainee Class Members;

25

d. Award restitution and damages to Plaintiffs and Class Members in an

26 amount to be determined at trial;

27

e. Order disgorgement of Defendant’s unjustly acquired revenue, profits,

28

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1 and other benefits resulting from their unlawful conduct for the benefit of Plaintiffs

2 and Class Members in an equitable and efficient manner determined by the Court;

3

f. Order the imposition of a constructive trust upon Defendant such that its

4 enrichment, benefit, and ill-gotten gains may be allocated and distributed equitably by

5 the Court to and for the benefit of Plaintiffs and the Class Members.

6

g. Award Plaintiffs and Class Members their reasonable litigation

7 expenses and attorneys’ fees;

8

h. Award Plaintiffs and Class Members pre- and post-judgment interest to

9 the extent allowable; and

10

i. Award such other and further relief as equity and justice may require.

11

JURY DEMAND

12 Plaintiffs hereby demand a trial by jury on all issues so triable.

13 Dated: July 26, 2016

/s/ Robert L. Teel

14

By: Robert L. Teel

15

LAW OFFICE OF ROBERT L. TEEL ROBERT L. TEEL

16

lawoffice@rlteel.com

17

207 Anthes Ave., Suite 201

Langley, Washington 98260

18

Telephone: (866) 833-5529

19

Facsimile: (855) 609-6911

20

LAW OFFICES OF RONALD A.

21

MARRON

22

RONALD A. MARRON

ALEXIS WOOD

23

KAS GALLUCCI

24

651 Arroyo Drive

San Diego, California 92103

25

Telephone: (619) 696-9006

26

Facsimile: (619) 564-6665

27

Attorneys for Plaintiffs

28

and the Proposed Class

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 Case 3:16-cv-01283-JM-MDD Document 22 Filed 11/07/16 PageID.870 Page 1 of 51

1

LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (SBN 175650)

2 ron@consumersadvocates.com

SKYE RESENDES (SBN 278511) 3 skye@consumersadvocates.com

4

ALEXIS WOOD (SBN 270200) alexis@consumersadvocates.com

5 KAS GALLUCCI (SBN 288709)

6

kas@consumersadvocates.com 651 Arroyo Drive

7 San Diego, California 92103 Telephone:(619) 696-9006

8 Facsimile: (619) 564-6665

9 LAW OFFICE OF ROBERT L. TEEL

10 ROBERT L. TEEL (SBN 127081)

lawoffice@rlteel.com 11 207 Anthes Ave., Suite 201

12

Langley, Washington 98260 Telephone:(866) 833-5529

13 Facsimile: (855) 609-6911

14 Attorneys for Plaintiff and the Proposed Class

15

UNITED STATES DISTRICT COURT

16

SOUTHERN DISTRICT OF CALIFORNIA

17

JUAN ROMERO, FRANK 18 TISCARENO, and KENNETH

Case No.: 16-cv-1283-JM-MDD

19 ELLIOTT, on behalf of themselves, and CLASS ACTION all others similarly situated,

20

SECOND AMENDED

21

Plaintiffs,

COMPLAINT FOR:

22

v.

23 SECURUS TECHNOLOGIES, INC,

24

Defendant.

25

26

27

28

(1) INVASION OF PRIVACY, CAL. PENAL CODE § 636;
(2) UNFAIR COMPETITION, CAL. BUS. & PROF. CODE §§ 17200, et seq.;
(3) CONCEALMENT; (4) FRAUD; (5) NEGLIGENCE; AND (6) UNJUST ENRICHMENT
DEMAND FOR JURY TRIAL

Romero et al v. Securus Technologies, Inc. No. 16-cv-1283 FIRST AMENDED COMPLAINT

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1

INTRODUCTION

2 1.

Plaintiffs Juan Romero (“Romero”), Frank Tiscareno (“Tiscareno”),

3 and Kenneth Elliott (“Elliott”), individually referred to herein as a “Plaintiff” and

4 collectively as the “Plaintiffs,” individually and on behalf of all other persons

5 similarly situated, by their undersigned attorneys, for their complaint against

6 defendant, file this lawsuit to stop Securus Technologies, Inc. (“Securus” or

7 “Defendant”) from, and obtain damages and restitution from Securus for, illegally 8 monitoring, recording, maintaining, storing, and disclosing private phone calls by

9 detainees to or from their attorneys without either party’s permission and without 10 warning, and allege the following based upon personal knowledge as to themselves

11 and their own acts, and information and belief as to all other matters, based upon, 12 inter alia, the investigation conducted by and through their attorneys, which

13 includes, without limitation, a review of Defendant’s public documents,

14 announcements, and wire and press releases published by and regarding Securus, 15 and information readily obtainable on the internet.

16 17 2.

JURISDICTION AND VENUE This Court has original jurisdiction pursuant to the Class Action

18 Fairness Act, 28 U.S.C. § 1332(d) (“CAFA”), because: (a) at least one member of 19 the putative Class is a citizen of a state different from Securus; (b) the amount in 20 controversy exceeds $5,000,000, exclusive of interest and costs; (c) the proposed

21 Class consists of more than 100 Class Members; and (d) none of the exceptions 22 under the subsection apply to this action.

23

3.

This Court has supplemental jurisdiction over the California Invasion

24 of Privacy Act, Cal. Penal Code §§ 630, et seq. (“CIPA”) and other state statutory

25 and common law claims pursuant to 28 U.S.C. § 1367 (supplemental jurisdiction 26 over pendant state law claims).

27

4.

This Court has personal jurisdiction over Defendant because: (a) it is

28 registered to, and in fact does, conduct business in California; and (b) has sufficient

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1 minimum contacts in California, or otherwise intentionally avails itself of the

2 markets within California through the promotion, sale, marketing, and distribution

3 of its products and services, to render the exercise of jurisdiction by this Court proper

4 and necessary.

5 5.

Venue is proper in this District under 28 U.S.C. § 1391 because: (a)

6 Plaintiffs are residents of, and domiciled in, this District, (b) Defendant conducts

7 substantial business in this District, and (c) a substantial part of the events giving 8 rise to Plaintiffs’ claims alleged herein occurred in this District.

9 10 6.

PARTIES Plaintiff Juan Romero is a resident of San Diego, California and the

11 county of San Diego, who was a detainee and prisoner held at one or more of San 12 Diego county’s detention facilities at various times from August 15, 2012 through

13 May 6, 2016, and a user of the Securus phone system who has used Securus’ phone

14 system to communicate legal information with his attorneys.

15 7.

Plaintiff Frank Tiscareno is a resident of Menifee, California and the

16 county of Riverside, who was a detainee and prisoner held at one or more of San 17 Diego county’s detention facilities from February 14, 2013 through February 25,

18 2013 and October 8, 2013 and September 26, 2015, and a user of the Securus phone 19 system who has used Securus’ phone system to communicate legal information with 20 his attorney(s).

21

8.

Plaintiff Kenneth Elliott is a resident of San Diego, California and the

22 county of San Diego, a licensed criminal attorney who has practiced law in San

23 Diego since 1988, and has used the Securus’ phone system to give legal advice to

24 and communicate legal information with his clients since Securus commenced

25 providing telephone services at San Diego county detention facilities.

26

9.

Defendant Securus Technologies, Inc. is a Delaware corporation with

27 its principal place of business at 14651 Dallas Parkway, Suite 600, Dallas, Texas 28 75254-8815.

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1

SUMMARY AND COMMON FACTUAL ALLEGATIONS

2

10.

Plaintiffs are attorney and detainee users of the Securus phone system

3 who bring this proposed class action lawsuit on behalf of all detainees and attorneys

4 who used the Securus phone system from July 10, 2008 to present (the opt-out date,

5 inclusive) to communicate, converse, and exchange information and legal advice,

6 and whose private phone calls were unlawfully recorded without permission of all

7 parties. Plaintiffs seek injunctive relief requiring Securus to implement and maintain 8 policies and practices to comply with all applicable laws and regulations designed

9 to protect privacy rights, and to prevent and remedy these types of unlawful private 10 and confidential recordings, as well as restitution, damages, statutory remedies,

11 disgorgement, and other further relief this Court may deem proper.

12

11. Throughout the country, a person arrested is typically brought to a

13 detention facility or jail to be booked by law enforcement authorities. Attorneys

14 routinely contact, communicate, converse, and exchange information and legal 15 advice with detainee clients in jail, by phone or videoconference to discuss

16 confidential matters. They do so under the express understanding, representation, 17 and promise from Securus that their conversations are private, confidential, and

18 privileged, and are not to be recorded without permission from all parties. Similarly, 19 Securus represents and promises, and detainees are told and understand, their 20 conversations with their attorneys are private, confidential, and privileged and not

21 to be recorded without permission from all parties.

22

12. Prison and jail communications is a $1.2 billion a year business. Securus

23 provides phone and videoconference services to detainees nationwide and, without 24 limitation, San Diego county, San Bernardino county, Riverside county, and other

25 California county detention facilities. Securus is a leading provider of phone 26 services inside the country’s prisons and jails.

27

13. Securus claims on its website that it is the largest inmate communications

28 provider in the country serving thousands of correctional facilities and more than one

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1 million inmates in at least 45 states. The company processes over one million calls per

2 day. In 2014, Securus is reported to have generated over $400 million dollars in

3 revenue from tolls and fees it charges detainees and their families, friends, lawyers,

4 and others for speaking with detainees.

5

14. Securus records communications between detainees and the outside

6 world on servers, electronic storage devices, cables, and software separate from what

7 connects the callers. The equipment it uses to intercept, record, and share detainees’

8 and lawyers’ telephone calls facilitates such calls. The recordings are not a

9 necessary incident of the calls.

10

15. Securus gives local law enforcement agencies direct eavesdropping

11 ability and online access to recorded phone calls and the ability to listen in and

12 review them at any time. In fact, some, if not all, of Securus’ contracts with law

13 enforcement require Securus to provide inmate call recording and tracking and allow

14 law enforcement, including without limitation prosecuting attorneys, to search the

15 contents of those recordings at will and without notice.

16

Promises About Recording of Private Attorney-Client Phone Calls

17

16. Securus promises Plaintiffs, Class Members, attorneys, and the public

18 that it does not record telephone calls between attorneys and their clients. For

19 instance, its “Video Visitation” brochure states in connection with an inmate’s calls

20 to their attorney: “These private sessions will not be recorded or monitored.”

21

17. Securus also pledges in its Customer Integrity Pledge on its website to

22 its customers, inmates, friends, family, attorneys, and the corrections community,

23 without limitation, that:

24

 We will be open and honest in our dealings;

25

 We will always be truthful in what we can do and what we can't do in

26

responses to your questions and requests;

27

 We understand that confidentiality of calls is critical, and we will follow all Federal, State, and Local laws in the conduct of our

28

business; and

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1

 We will show you respect, dignity, and integrity in all of our

2

dealings.

3

18. Securus thereby leads detainees and their attorneys, including Plaintiffs

4 and Class Members, to believe calls between them are not recorded without

5 permission of all parties, and are private and confidential.

6

19. In reality, however, Securus does eavesdrop on, listen in on, record, and

7 store private and confidential attorney-client phone calls without permission of all

8 parties, and Securus shares access and recordings with law enforcement personnel,

9 including prosecutors, as evidenced by, inter alia, reports by lawyers of production

10 of such recorded calls from prosecutors in discovery. The opportunity for the

11 prosecution to use the knowledge acquired through eavesdropping and listening to

12 the recorded phone calls to their tactical advantage, with or without admitting they

13 eavesdropped or obtained or listened to the recordings, creates a huge potential for

14 mischief and abuse and a chilling effect on the effective assistance of counsel - a

15 constitutional right.

16

Invasion of the Protected Privacy Interest

17

20. Civil detainees, like other citizens, have an objectively reasonable right

18 to expect that their phone calls, and especially private and confidential attorney-client

19 phone calls, will not be recorded or stored without their permission. Law enforcement

20 is not free to record and make use of telephone conversations, and especially attorney-

21 client telephone conversations and recordings, without limitation.

22

21. Plaintiffs, Class Members, and all attorneys and their clients have a right

23 to privacy when making or receiving attorney-client phone calls. Securus’ conduct

24 seriously violates Plaintiffs and Class Members’ statutory and common law rights of

25 privacy and invades constitutionally, statutorily, and legally protected financial and

26 privacy interests that caused, and threatens to cause, real-world, concrete, and palpable

27 harm that affects Plaintiffs and Class Members in a personal and individual way.

28

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1

Securus is Not So Secure

2

22. On or about November 11, 2015, the online journalism publication, The

3 Intercept, announced it had received “an enormous cache of phone records” and other

4 material, which revealed a major data breach by Securus of 70 million stored phone

5 call recordings, including what has now been determined to be over 57,000

6 confidential attorney-client phone calls, and counting, as well as other personal

7 information, in not less than 37 states. The recorded and leaked calls span a nearly two 8 and one-half year period beginning in December 2011 and ending in the spring of 2014

9 in calls that range from under a minute to over an hour in length. Securus makes money 10 when the call is connected, regardless of how long it lasts, and receives more revenue

11 the longer the call lasts.

12

23.

Securus advertises and promotes itself as having a superior phone system

13 called the “Secure Call Platform” that is able to monitor, record, and securely store

14 phone call recordings and make them accessible only to authorized users within the 15 criminal justice system. Securus, through promotional materials, touts itself as a

16 provider of “the most technologically advanced audio and video communications 17 platform to allow calls with a high level of security.”

18

24. Securus also states that it does “not sell, trade, or otherwise transfer to

19 outside parties, including law enforcement, personally identifiable information,”

20 except under certain limited circumstances. In fact, Securus does extensive business

21 with local and county governments and private contractors, state departments of 22 correction, the federal Bureau of Prisons, and the U.S. Marshal’s Service, all of which 23 operate the nation’s jails and run the nation’s prison systems. Securus derives 24 substantial revenue from “site commissions,” which it kicks back in the form of

25 payments to government law enforcement from revenue generated by inmate calls.

26

25. Securus’ website claims that its database contains the billing names and

27 addresses of over half a million people who are not incarcerated, as well as information 28 about 1,000,000 inmates from over 2,000 correctional facilities, that includes over 100

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1 million call records. Securus recognizes that this is valuable data and boasts it can

2 make it available at the fingertips of law enforcement and correctional authorities.

3 Securus states that the data, which is available and being sold to corrections and law

4 enforcement authorities through so-called “site commissions,” is “growing every day”

5 and can be provided to law enforcement investigators on demand.

6

Securus Breaches Its Duties and Obligations

7

26. In addition to the duties and obligations Securus has voluntarily

8 undertaken and committed to, Securus has statutory obligations not to record private

9 and confidential attorney-client phone calls without permission of all the parties. For 10 example, Securus has a duty and obligation to follow all federal, state, and local laws

11 in conducting its business, yet breached this duty by, amongst other things, recording 12 private and confidential attorney-client privileged communications without permission

13 or consent.

14

27. In its 2011 bid to provide phone service to inmates in Missouri’s state

15 prisons (just as it did in its bid to provide phone service to detainees of the San Diego

16 County Sheriff’s Office and all the other local and county detention facilities 17 throughout California), Securus undertook a duty and obligation to record and monitor

18 each call, with the exception of attorney-client calls. But, the database provided to The 19 Intercept shows that over 57,000 recordings of Missouri inmate-attorney 20 communications were recorded, collected, stored, disclosed, and ultimately hacked.

21

28. The Intercept arrived at the 57,000 figure by looking up each of the nearly

22 1.3 million phone numbers that inmates called in a public directory of businesses to

23 find out whether a law firm or attorney’s office is associated with that number. Those

24 numbers, however, do not include calls to attorneys’ cellphones or other attorneys’

25 numbers not listed in a public business directory, and the number of recorded attorney26 client calls is undoubtedly higher.

27

29. Securus has undertaken these duties and obligations not to record private

28 attorney-client conversations and communications, both directly to users of the

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1 Securus system, and in its contracts with law enforcement agencies, yet it appears

2 Securus has no intention of ceasing its unlawful, unconstitutional eavesdropping, 3 recording, and invasion of private attorney-client communications. Detainees and 4 lawyers are all at substantial risk of having their conversations monitored, recorded, 5 and used against them to prejudice their criminal cases, and that Defendant will 6 continue to violate their rights.

7

30. Securus claims on its website that it has a superior, revolutionary

8 technology that collects intelligence from more than 2,600 law enforcement and

9 correction agencies, “providing unbeatable lead generation.” It also promotes itself as 10 “SAS 70 and Sarbanes-Oxley compliant.”

11

31. Securus promises that its platform will “allow calls with a high level of

12 security” and that it “understands that confidentiality of calls is critical, and [it] will

13 follow all federal, state, and local laws in the conduct of [its] business.” It also pledges 14 to “provide and invest in security features that will make all parties and the public safe 15 while maintaining the critical family connection to inmates.”

16

32. However, the sheer scale of the Securus hack of over 70 million

17 recordings shows that the company’s promises and promotional and advertising claims

18 are false and misleading and that Securus has failed to live up to its own duties,

19 obligations, and undertakings.

20

33. In addition, the qualitative nature of the data hack reveals the falsity of

21 Securus’ promises and promotional and advertising materials. The Securus database

22 reveals that the recordings contained prisoners’ first and last names; the phone numbers

23 they called; the date, time, and duration of the calls; the inmates’ Securus account

24 numbers; as well as other information. In addition to metadata, each phone call record

25 includes a “recording URL”, which provides a link to where the audio recordings of 26 the calls can be downloaded with the click of a mouse.

27

34. On November 12, 2015, Securus admitted the data breach and flaws in

28 its security measures for the first time when it emailed The Intercept and stated

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1 “evidence suggests that an individual or individuals with authorized access to a limited

2 set of records may have used that access to inappropriately share those records.”

3

35. According to The Intercept, in an email thread from July 21, 2014, two

4 Securus employees discussed the breach. “OMG……..this is not good!” reads

5 one email contained in the document. “The company will be called to task for this if

6 someone got in there that shouldn’t have been.” There is no indication the 2014 hack

7 had been made public prior to The Intercept article.

8

36. In response to The Intercept article Securus issued a press release

9 saying,

10

"It is very important to note that we have found absolutely no evidence of

11

attorney-client calls that were recorded without the knowledge and consent of

12

those parties," Securus added. "Our calling systems include multiple safeguards

to prevent this from occurring. Attorneys are able to register their numbers to

13

exempt them from the recording that is standard for other inmate calls.

14 Securus did in fact have undeniable evidence that of attorney-client calls that were

15 recorded without the knowledge and consent of those parties as further set forth

16 below.

17

37. Securus lied thinking it was “in the clear” because the private phone calls

18 Securus recorded between detainees and their attorneys while in physical custody in

19 San Diego county were not included in The Intercept cache of phone calls.

20

No Permission or Warning

21

38. Commencing in and around 2008, the San Diego County Sheriff’s

22 Office (“Sheriff”) verbally and in writing informed the San Diego criminal defense

23 bar that attorneys who requested to opt-in to, and have their telephone numbers

24 placed on, a “Do Not Record” database, and register those numbers to persons whose

25 conversations with inmates may be privileged, that their calls would be “privatized”

26 and not recorded.

27

39. On or about July 10, 2008, Plaintiff Elliott provided the Sheriff with

28 three office numbers and two wireless numbers which were placed in the “Do Not

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1 Record” database and registered to him as private, thereby informing the Sheriff he

2 did not give permission to have his telephone calls with detainees and prisoners

3 recorded.

4

40. On July 10, 2008, Detective David Hale of the Sheriff’s office wrote

5 Mr. Elliott and stated: “The numbers you requested were placed into the database as

6 privatized.” To this day, Plaintiff Elliott has never been informed or warned that his

7 telephone calls with his detained clients were, or may be, monitored or recorded.

8

41. To the contrary, since at least May 8, 2010, attorneys who have inquired

9 about the privacy or recording of their phone calls with detained clients have been

10 told specifically that if their number is in the “Do Not Record” database, their calls

11 will not be recorded.

12

42. Attorney-client users of the Securus phone system did not and do not

13 hear any “Monitor and Record” prompt, or any other warning or indication that that

14 the phone call was, or is, being monitored and recorded.

15

43. But in fact, Securus did (and does) record private phone calls to and

16 from detainees to their criminal defense attorneys, including the Public Defender’s

17 Office, Alternate Public Defender’s Office, and Assigned Counsel’s Office, without

18 their permission and without any warning.

19

Securus Unlawfully Records Private Attorney-Client Calls

20

44. As an example, without limitation, of dozens of emails evidencing

21 unlawful recording, on March 25, 2014 Captain Frank Clamser of the Sheriff’s office

22 wrote Marlon Miller at Securus stating:

23

“Marlon,

24

I randomly reviewed the call logs for the below telephone numbers for

25

the past year, April 1, 2013 to today. All of these numbers are set as

private numbers in the SCP and should not be being recorded. All of

26

these numbers were recorded at some point in the past year. I know you

27

are trying to determine why private calls are being recorded and I wanted

28

to provide you additional examples.

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1

6192343429 3103937536

2

6192310401 6192318575

3

6192322311 6192327200

4

6192342300 6192355638

5

6192361151 6192371700

6

6193384605 6193384700

6193384800 6193384839

7

6195793316 7606302000

8

7606303333 7609454000

9

7609455535”

10

45. Plaintiff Elliott’s telephone number is 760-630-3333 and is included in

11 the Sheriff’s email as a phone number that is private, should not be recorded, was

12 recorded, and was among the “additional examples” of such recordings.

13

46. Securus’ own records, provided in a declaration by Ian Jones filed on

14 or about July 5, 2016 (ECF No. 4-1), show that during the period from November 2,

15 2012 through May 5, 2016, while in the Sheriff’s custody, Plaintiff Romero placed

16 85 separate phone calls totaling over 5.5 hours to his attorney’s telephone number

17 (619-231-0401), which is set forth in the Sheriff’s March 25, 2014 email. In fact,

18 Plaintiff Romero had a ten-minute phone call with his attorney on March 24, 2014,

19 the day before Captain Clamser’s email which provided “additional examples” of

20 illegally recorded calls.

21

47. Securus’ records also show that from April 11, 2014 through October

22 12, 2015 while in the Sheriff’s custody, Plaintiff Romero placed 8 separate phone

23 calls to the San Diego Public Defender’s telephone number (619-338-4700), which

24 is set forth in the Sheriff’s March 25, 2014 email.

25

48. Securus’ records also show that on January 29, 2015 while in the

26 Sheriff’s custody, Plaintiff Tiscareno placed 3 separate phone calls to his attorney’s

27 telephone number (619-231-0401), which is set forth in the Sheriff’s March 25, 2014

28 email.

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1

49. On April 14, 2014, Captain Clamser emailed Marlon Miller and

2 Christopher Hudson at Securus stating:

3

“Marlon,

4

5

Fished through some of the private calls for the month of April. Attached

6

is a list of private calls I found that were recorded. Can you please

achieve [sic] these calls so they are not able to be listened to. Is there

7

any update on resolving the problem that is allowing these calls to be

8

randomly recorded?”

9

10

50. Two weeks later on April 29, 2014, Captain Clamser again emailed

11 Marlon Miller and Christopher Hudson at Securus, stating:

12

“The attached Excel document contains a list of private call [sic] that were

13

recorded. The most recent call was recorded yesterday. This problem still

14

exists within the SCP and has not been rectified.”

15

16

51. On May 21, 2014, Captain Clamser again wrote Securus’ Chris

17 Hudson, stating:

18

“The attached excel document has a list of private calls that were recorded.

19

The problem still exists. Please ensure these calls are blocked from be

20

[sic] able to be listened to.”

21

52. These and other emails set forth herein and elsewhere describe with

22 detailed particularity the fact that calls between detainees and their attorneys marked

23 private are not only being recorded, but also listened to, without permission, consent,

24 or warning of all parties.

25

Securus “Purges” Lists of Private Recorded Calls

26

53. Rather than notify Plaintiffs, Class Members, and its attorney and

27 detainee customers, Securus “purged” from its system the list of private calls that

28 were recorded.

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1

54. In an email from Christopher Hudson to Captain Clamser on

2 Wednesday, April 2, 2014, Mr. Hudson stated:

3

4

“When I spoke with Marlon last her [sic] was having these numbers purged.

Marlon is not here today. I will follow up with him tomorrow to check the status

5

on this issue. I will keep you updated as well.”

6

7

55. On June 12, 2014, Captain Clamser wrote Chris Hudson stating:

8 “Attached is a list of private calls that were recorded within the system.

9

Can you please purge the calls. is there any time line on when the issue

10

will be resolved.”

11

12

56. On June 17, 2014, Mr. Hudson again wrote Captain Clamser stating:

13

“Also, Here is the latest update regarding San Diego County and the issue

14

with recorded attorney calls per Marlon Miller. The recordings will be

15

purged as a part of this week’s maintenance window.”

16

17

57. And again on July 18, 2014 Captain Clamser emailed Securus:

18

“Please see the attached for a list of private calls that show they were

19

recorded. Please purge.”

20

58. And again on August 5, 2014 Captain Clamser emailed Chris Hudson

21 at Securus:

22

“Please purge the calls on the attached Excel document.”

23

24

59. And again on August 8, 2014 Chris Hudson emailed Captain Clamser:

25

“The last of the calls being purged was the list that you sent me on

26

08/05/2014 regarding the calls that took place from 07/18/2014 through

27

07/21/2014.”

28

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1

60. And again on August 21, 2014, Securus’ Technical Support Technician,

2 Agent ID: 120741, wrote Captain Clamser stating:

3

“This e-mail is to inform you that your request to have calls purged for following

4

private attorney numbers: 6193384700, 6195793316, 6194462900 has been

5

completed. This e-mail is to gain closure authorization for the ticket currently

6

open. Please respond to this e-mail with closure authorization or contact Securus

7

Technical Support at 866-558-2323 and reference ticket number 14857901.”

8

9

61. Securus Knows the Private Numbers and Calls That Were

10 RecordedOn March 25, 2014, Captain Clamser emailed Kris Alderman at Securus

11 stating:
12 “I thought you said that you thought they could query all the private numbers to
13 see if any other number were being recorded.” 14 Later that day, Mr. Alderman wrote back, 15
“They can, but if they have specifics it will help . . . ” 16

17

61. Then on June 19, 2014, Debbie Cates from Securus wrote an email to

18 Ankur Desai, Sr. Manager of Technical Support, and Kris Alderman, amongst other

19 Securus personnel, stating:

20

21

“22 calls out of 15,000 has been challenging to capture.”

22

62. On June 20, 2014 Mr. Desai emailed Captain Clamser stating:

23

24

“Here is the latest. We have top resources looking into this. Please don’t

forward this email, its internal.”

25

26 The internal email stated, “Jim Rice is working on a report that will allow us to be

27 proactive moving forward to identify calls that should not be recorded.”

28

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1

63. On November 13, 2015 there was an email exchange between Captain

2 Clamser and Kris Alderman in response to The Intercept article as follows:

3

4

Kris Alderman: “You may or may not have received notice of the media report

5

attached regarding private calls released to the public. Please see our formal

6

response and additional information about what we are doing moving forward

7

with the incident.”

8

Captain Clamser: “Thank you for the information. Can you let me know if any

9

of the calls that were released are from San Diego?”

10

11

Kris Alderman: “They were not, we are in the clear [emphasis added]. I have

12

another release coming sometime today.”

13

64. The contents of the above-described emails demonstrate with

14 particularity (who, what, when, and where) private attorney-client phone calls were

15 listened in on and recorded without permission and that Securus’ tried to conceal

16 these facts.

17

65. There is no inquiry required to be answered as to any individual phone

18 call; Securus knows and has identified them, who they were to, and who the parties

19 were. There is no issue regarding the private nature of these calls; Securus has

20 marked and identified them private. And, the recorded calls can easily be identified

21 by Securus; they recorded and compiled them.

22

66. The particularized facts evidenced by, without limitation, the email

23 contents set forth above are:

24 a. Since 2008, San Diego county criminal defense attorneys have been told

25

verbally and in writing that if they placed their phone numbers in a “Do Not

26

Record” database, their phone conversations would not be recorded;

27 b. From at least April 1, 2013 through August 5, 2014 Securus recorded attorney

28

phone numbers and calls that were set as private numbers in the Securus

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1

system that should not have been recorded and that were expressly requested

to be used for private conversations and the seeking and giving of professional

2

legal advice and information between attorneys and their clients;

3

4 c. Commencing on March 25, 2014, Securus was expressly notified of the dates,

identifiers, numbers, lengths of calls, privatization status, and other specific

5

identifying information at least 22 “additional” examples out of 15,000 such

6

recordings;

7

d. From March 25, 2014 until at least August 5, 2014 Securus knowingly

8

continued to monitor and record attorney-client conversations without

9

permission or warning on attorney phone numbers that were set as private

10

numbers in the Securus system that should not have been recorded and that

11

were expressly requested to be used for private conversations and the seeking

and giving professional legal advice and information; 12

13 e. From March 25, 2014 through August 21, 2014 Securus “purged” one or more

14

lists of phone numbers, lists of calls, and actual recordings of illegally

recorded conversations seeking and giving professional legal advice and

15

information that were set and known to be private; and

16

17 f. On November 13, 2015, Securus made a conscious decision to conceal, suppress, and cover-up the illegal recordings stating it was “in the clear.”
18

19

67. Securus knew these calls were being recorded unlawfully and covered it

20 up by suppressing and concealing the true facts. Securus had a duty and was bound to

21 disclose its unlawful eavesdropping and recording due to its superior and exclusive

22 knowledge of the true facts which were not known or reasonably accessible to

23 Plaintiffs and Class Members, and its express representations that it would follow all

24 local, state, and federal laws.

25

68. Instead, Securus actively concealed, suppressed, omitted, and failed to

26 disclose the true facts concerning the recording, storage, and security of private,

27 confidential, and privileged attorney-client phone calls with the intent to induce

28

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1 Plaintiffs and Class Members to continue to purchase Securus’ communications

2 services.

3

69. Plaintiffs and Class Members were unaware of these suppressed and

4 omitted material facts at the time they used the Securus system. Plaintiffs and Class

5 Members relied on the truthfulness and reliability of the statements made by Securus.

6 Plaintiffs and Class Members did not know, or have any reason to know, of these facts,

7 conditions or circumstances. If they had known the true facts at the time of their 8 telephone calls, Plaintiffs and Class Members would not have used or paid for Securus’

9 services as they did for their attorney-client communications and would have taken 10 action sooner to assert and protect their privacy rights.

11

70. Plaintiffs and Class Members did not discover, and could not have

12 discovered with any amount of reasonable diligence, the true facts regarding Securus’

13 recording of their private attorney-client calls on or before March 3, 2016 when 14 approximately 2,330 emails between the Sheriff’s office and Securus’ were published 15 in response to a California Public Records Act request. Plaintiffs and Class Members

16 were ignorant of the true facts regarding Securus’ recording of their private attorney17 client calls, and lacked the ability to have earlier discovered the true facts, until March

18 3, 2016 when the emails were published.

19

71. Defendant’s acts, omissions, and concealments have rendered

20 unavailable and futile any other remedies which could have been pursued or exhausted.

21 Plaintiffs and Class Members have suffered, and will continue to suffer, irreparable 22 harm by its very definition because their constitutional, statutory, and common law

23 protected privacy rights and interests have been, and continue to be, violated by the 24 actual and threatened intrusion and invasion thereof by Defendant.

25

72. Not even an award of damages following Plaintiffs’ delayed discovery of

26 the illegal recordings can undo the irreparable harm suffered, and there neither was nor

27 is any other remedy available to Plaintiffs and Class Members to pursue or exhaust that 28 would not be futile.

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1

Plaintiffs Have Suffered Individualized Actual Concrete Injury in Fact

2

73. The United States Supreme Court has characterized the sixth

3 amendment’s guarantee of assistance of counsel in all criminal prosecutions as a

4 right that is fundamental to library and justice. Communication between an attorney

5 and his client must be free and open and remain confidential for the right to effective

6 assistance of counsel to have any meaning.

7

74. Only through confidential communication can both the attorney and the

8 client can make informed choices about the preparation and conduct of the client’s

9 defense. If the government can obtain damaging information from counsel, 10 defendants will not confide in their lawyers. The predictable result would be to

11 undermine the quality of the legal representation. Only through free, open, and 12 confidential communication can an attorney provide optimal legal representation.

13

75. This is not a case of “no harm, no foul.” Plaintiffs and the Class

14 Members paid for private phone calls that were eavesdropped on and recorded by 15 Securus, and which invaded their legally, statutorily, and constitutionally protected

16 interests of the right to privacy and the right to effective assistance of counsel. 17 Plaintiffs and the Class members would not have paid for or made these types of

18 phone calls, or would not have paid as much for such compromised phone calls, had

19 they known the truth about Securus’ eavesdropping and recording.

20

76. This in and of itself is concrete, particularized, actual harm and injury.

21 Unfortunately, and even more importantly, the actual and imminent harm inflicted

22 on Plaintiffs and the Class Members does not start and end with the potentially

23 hundreds of millions of dollars of tangible damage caused by Securus’ conduct.

24

77. As an example, without limitation, of both the tangible and intangible

25 harm caused by Securus conduct, on or about June 17, 2016, Plaintiff Elliott received 26 a collect call from a detainee who was in the Sheriff’s custody in county jail. Mr.

27 Elliott, now being aware that his prior phone calls with detainees had been 28 eavesdropped on, and uncertain about the privacy of his phone calls, including

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1 without limitation this particular call, was faced with the Hobson’s choice of either:

2 (a) paying for using an insecure phone line with a detainee for a conversation in a 3 guarded exchange of limited, closed, and compromised information and advice; (b) 4 paying for having a free, open, and confidential communication recorded and used 5 against him and a client; or (c) not accepting or paying for the call and either 6 foregoing communication entirely, or devoting significant time, cost, expense, and

7 effort to visit the detainee and only exchange information and give legal advice in 8 person. Plaintiff Elliott and the Attorney Class Members are suffering the same

9 imminent harm in connection with every Securus phone system call to or from a 10 detainee in the custody of law enforcement.

11

78. The detainee, on the other hand, without limitation, is and was faced

12 with the proposition of either: (a) having his constitutionally protected right to

13 effective assistance of counsel illegally compromised; or (b) incurring fees and

14 expenses for Mr. Elliott to make a delayed trip to jail to securely visit him in person, 15 thereby turning a ten-minute phone call into a three-hour trip and jeopardizing his

16 right to timely assistance of counsel.

17

79. Plaintiffs and the Class Members have suffered real-world, actual,

18 concrete harm by, without limitation: (a) paying for calls they otherwise would not 19 have paid for had they know of Securus’ conduct; and (b) having their legally 20 protected rights to privacy and effective assistance of counsel invaded. The Attorney

21 Class and Current Detainee Class is presently facing the same imminent real, actual, 22 and concrete harm and injury from Securus’ concealment of its illegal conduct and

23 its failure to redress the harm.

24

80. Plaintiff Elliott and the Attorney Class Members are presently suffering

25 a real, actual, imminent, and concrete harm and injury traceable to Securus’ conduct 26 resulting from the uncertainty and confusion of having their phone calls with

27 attorneys recorded by: (a) paying for using an insecure phone line for a client 28 conversation in a guarded exchange of limited, closed, and compromised

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1 information and advice, on the one hand; or (b) on the other hand: (1) paying for

2 having free, open, and confidential communication recorded and used against them 3 and their clients and compromising not only the communication, but also the 4 ultimate success or failure of the defense and therefore the attorneys’ reputation and 5 livelihood; (2) not paying for or accepting phone calls and devoting significant time, 6 cost, expense, and effort to make in person visitations, thereby diminishing and

7 diverting attorney income and resources; (3) subjecting themselves and their 8 reputations to damage from the diminished effectiveness of their professional

9 assistance in the defense of their clients through limitations on their 10 communications, exchange of information, advice; and (4) changing and/or

11 compromising defense strategies in connection with the eavesdropping and 12 recording of confidential communications with their clients.

13

81. The total number of private phone calls between detainees and their

14 lawyers recorded without permission or warning is currently unknown, but the 15 recording of private attorney-client calls appears endemic to the Securus system on a

16 California-wide, and indeed a nationwide, basis. Based on the contents of emails set 17 forth above, it appears there were at least 15,000 such calls illegally recorded between

18 April 1, 2013 and June 19, 2014 in San Diego county alone.

19

82. Securus, though, can tell us how many private calls were unlawfully

20 recorded. Securus not only brags in its promotional materials, in its proposals, and in

21 its contracts that it places this information and law enforcements “fingertips,” but also

22 admits in the content of the emails set forth above that it has the capability to query all

23 the private numbers which attorneys affirmatively “privatized” and which Securus

24 knew they did not have permission to record to see: (a) if any such numbers were in

25 fact being recorded; and (b) how many of such private calls were in fact recorded.

26

83. Securus’ ability to identify calls marked private which they did not have

27 permission to record, but which they did in fact record as further evidenced by Mr. 28 Jones’ declaration filed on or about July 5, 2016 (ECF No. 4-1).

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1

84. In addition to San Diego county (population 3.2M), Securus also does

2 business in Riverside county (population 2.2M), San Bernardino county (population 3 2M), San Mateo county (population 700K), and other California counties. In all, 4 Securus claims to serve 70 county detention facilities in California alone. Based on an 5 extrapolation of the 15,000 illegally recorded calls in San Diego county searched by 6 Securus, as well as the Missouri statistics, the potential number of private attorney-

7 client phone calls unlawfully recorded by Securus is staggering, with well over 8 500,000 calls estimated per year made just to the Public Defenders’ offices in the four

9 counties listed above.

10

85. Securus has been wrongly and unjustly enriched by payments illegally

11 collected by Securus, and the retention of such payments is unfair and unlawful given 12 the true facts regarding the eavesdropping, listening to, recording, storage, disclosure,

13 and security of the conversations between Plaintiffs, Class Members, and detainees

14 and their attorneys who used the Securus system. Securus should not be allowed to 15 retain the proceeds from the benefits conferred upon it by Plaintiffs, Class Members,

16 and attorney-client users of the Securus system.

17

PLAINTIFFS’ EXPERIENCES

18

Plaintiff Romero

19

86. Plaintiff Juan Romero is a resident of San Diego, California and the

20 county of San Diego who formerly was a detainee and prisoner of, without limitation,

21 the San Diego County George Bailey Detention Facility, at various times from 22 August 15, 2012 through May 6, 2016. During the Class Period, Mr. Romero used 23 the Securus phone systems in private conversations with his attorneys. Mr. Romero’s 24 attorneys’ phone conversations with detainees were recorded. On information and

25 belief, Securus recorded Mr. Romero’s private, confidential, and privileged phone calls 26 with his attorneys without warning to, or permission from, all parties.

27 28

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1

87. Neither Plaintiff Romero nor his attorneys have received any notice of

2 the recording of their phone calls. Securus’ unlawful recordings compromised the

3 private, confidential, and privileged conversations of Mr. Romero and his lawyers.

4

Plaintiff Tiscareno

5

88. Plaintiff Frank Tiscareno is a resident of Menifee, California and the

6 county of Riverside who formerly was a detainee and prisoner of, without limitation,

7 the San Diego County Central Jail, from February 14, 2013 through February 25, 8 2013 and October 8, 2013 and September 26, 2015. During the Class Period, Mr.

9 Tiscareno used the Securus phone systems in private conversations with his attorney. 10 Mr. Tiscareno’s attorney’s phone conversations with detainees were recorded. On

11 information and belief, Securus recorded Mr. Tiscareno’s private, confidential, and 12 privileged phone calls with his attorney without warning to, or permission from, all

13 parties.

14

89. Neither Plaintiff Tiscareno nor his attorney have received a notice of

15 the recording of their phone calls. Securus’ unlawful recordings compromised the

16 private, confidential, and privileged conversations of Mr. Tiscareno and his lawyer.

17

Plaintiff Elliott

18

90. Plaintiff Kenneth Elliott is a resident of San Diego, California and the

19 county of San Diego who is a licensed member of the California Bar and a criminal

20 law attorney practicing in San Diego county. During the Class Period and continuing

21 to this day, Mr. Elliott used, and continues to use, the Securus phone system in private 22 conversations with his clients to communicate and give professional advice, and to

23 both give and receive information in connection with the legal representation of his 24 clients while such clients are in the physical custody of the Sheriff.

25

91. On or about July 10, 2008, Mr. Elliott informed the Sheriff he was not

26 giving permission to have his telephone calls with detainees and prisoners recorded

27 by requesting his three office telephone numbers and two mobile phone numbers be 28 placed in the “Do Not Record” database and be privatized. On July 10, 2008,

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1 Detective David Hale of the Sheriff’s office wrote Mr. Elliott and stated: “The

2 numbers you requested were placed into the database as privatized.”

3

92. Mr. Elliott’s private and privileged attorney phone conversations with

4 detainees were recorded, as evidenced by the contents of the emails set forth above.

5 Securus recorded his private, confidential, and privileged phone calls with his clients

6 without warning to, or permission from, all parties.

7

93. Plaintiff Elliott did not give permission for, and was neither warned of

8 nor received notice of, the recording of his private and privileged phone calls with

9 his clients. Securus’ unlawful recordings compromised, and continue to

10 compromise, the private, confidential, and privileged conversations of Mr. Elliott

11 and his detainee clients.

12

CLASS ACTION ALLEGATIONS

13

94. Plaintiffs bring this action pursuant to Federal Rule of Civil Procedure

14 23 on behalf of themselves and all Members of the “Attorney Class,” preliminarily

15 defined as:

16

The Attorney Class

17

All attorneys: (a) whose conversation(s), or any portions thereof were

18

listened to, eavesdropped on, and/or recorded by Securus from July 10, 2008

19

to the applicable opt-out date, inclusive: (b) without permission of all parties

to such conversation; (c) by means of an electronic device; (d) with a person

20

for whom they were serving as an attorney; and (e) while such person was in

21

the physical custody of a law enforcement officer or other public officer, or

22

who was on the property of a law enforcement agency or other public agency

23

in California.

24 Such persons are collectively referred to herein individually as an “Attorney Class

25 Member” and collectively as the “Attorney Class” or “Attorney Class Members.”

26

95. Additionally, Plaintiffs bring this action pursuant to Federal Rule of

27 Civil Procedure 23 on behalf of themselves and all Members of the “Former

28 Detainee Class,” preliminarily defined as:

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1

The Former Detainee Class

2

All persons who were physically in California, and: (a) whose

conversation(s), or any portions thereof with that person’s attorney(s) were

3

listened to, eavesdropped on, and/or recorded by Securus from July 10, 2008

4

to the applicable opt-out date, inclusive: (b) without permission of all parties

5

to such conversation; (c) by means of an electronic device; (d) while such

6

persons were in the physical custody of a law enforcement officer or other

7

public officer, or who were on the property of a law enforcement agency or

other public agency.

8

9

96. Additionally, Plaintiffs bring this action pursuant to Federal Rule of

10 Civil Procedure 23 on behalf of themselves and all Members of the “Current

11 Detainee Class,” preliminarily defined as:

12

The Current Detainee Class

13

All persons in California, who currently, and on the applicable opt-out date,

14

inclusive, are: (a) in the physical custody of a law enforcement officer or

15

other public officer, or who is on the property of a law enforcement agency

16

or other public agency, in a facility served by Securus as a

telecommunications service provider; (b) whose conversation(s), or any

17

portions thereof with their attorney(s) were listened to, eavesdropped on,

18

and/or recorded by Securus from July 10, 2008 to the applicable opt-out date,

19

inclusive; (c) without permission of all parties to such conversation; (d) by

20

means of an electronic device; and (e) while such persons were in the physical

custody of a law enforcement officer or other public officer, or who were on

21

the property of a law enforcement agency or other public agency in

22

California.

23

24

97. The Classes described in this Complaint may be jointly referred to as

25 the “Class” and proposed Members of the Classes may be jointly referred to as

26 “Class Members.”

27

98. Excluded from the Class are the Defendant herein, law enforcement

28 agencies and personnel, members of the foregoing persons’ immediate families and

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1 their legal representatives, heirs, successors, or assigns, and any entity or person in

2 which Defendant has or had a controlling or supervisory interest or control over at

3 all relevant times.

4

99. Plaintiffs satisfy the numerosity, commonality, typicality, adequacy,

5 and predominance prerequisites for suing as representative parties pursuant to Rule

6 23 of the Federal Rules of Civil Procedure.

7

100. Numerosity. The exact number of proposed Class Members is

8 currently not known, but is believed to consist of hundreds if not thousands of

9 former or current Securus detainees and attorneys who have used, or are using, 10 Securus’ phone system and have had their private attorney-client phone

11 conversations recorded without their permission or warning, making joinder of each 12 individual Class Member impracticable.

13

101. Commonality. Common questions of law and fact exist for the

14 proposed Class’ claims and predominate over questions affecting only individual

15 Class Members. Common questions include, without limitation:

16 a. Whether the recording of a telephone call between a detainee and his or her

17

or her attorney without permission or warning constitutes a violation of each

18

Class Member’s CIPA rights, common law tort of invasion of privacy rights,

19

and other statutory and common law rights as set forth herein;

20 b. What monitoring, limiting, and supervisory procedures and practices should

21

Securus be required to implement to ensure ongoing protection of each

22

Attorney Class Member’s and Current Detainee Class Member’s CIPA or

23

other legal rights and as part of any injunctive relief ordered by the Court;

24 c. Whether Securus violated the Class Members’ rights under California Penal

25

Code Section 636 by recording of a telephone call between a detainee and his

26

or her attorney without permission or warning;

27 d. Whether Securus acted negligently, fraudulently, and unlawfully by, without

28

limitation: (i) failing to adequately protect Class Members’ privacy rights;

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1

(ii) eavesdropping on, listening in to, recording, disclosing, and/or storing

2

private, confidential, and privileged telephone calls between detainees and

3

their attorneys without permission of all parties; (iii) failing to follow all

4

applicable laws; (iv) failing to notify, warn, or get permission of Plaintiffs and

5

Class Members, at the point of call or otherwise, to record the call; (v) failing

6

to notify Plaintiffs and Class Members after the recording of private telephone

7

calls and conversations between a detainee and his or her attorney without

8

permission or warning that the call had been recorded; and (vi) failing to

9

maintain adequate monitoring, limiting, and supervisory procedures, policies,

10

and practices;

11 e. Whether Plaintiffs and Class Members may obtain damages, restitution,

12

disgorgement, declaratory, and injunctive relief against Securus; and

13 f. What monitoring, limiting, supervisory, policies procedures and practices,

14

security procedures, and recording warning and notification procedures

15

Securus should be required to implement as part of any injunctive relief

16

ordered by the Court.

17

102. Typicality. Plaintiffs’ claims are typical of the claims of the proposed

18 Class because, among other things, Plaintiffs and Class Members sustained similar 19 injuries and statutory damages as a result of Securus’ uniform wrongful conduct and 20 their legal claims all arise from the same core Securus practices.

21

103. Adequacy. Plaintiffs will fairly and adequately protect the interests of

22 the Class. Their interests do not conflict with Class Members’ interests and they

23 have retained counsel competent and experienced in complex, privacy, and class 24 action litigation to vigorously prosecute this action on behalf of the Class. In

25 addition to satisfying the prerequisites of Rule 23(a), Plaintiffs satisfy the 26 requirements for maintaining a class action under Rule 23(b)(3).

27

104. Common questions of law and fact predominate over any questions

28 affecting only individual Class Members and a Class action is superior to individual

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1 litigation. The amount of damages available to individual Plaintiffs are insufficient

2 to make litigation addressing Securus’ conduct economically feasible in the absence 3 of the Class action procedure. Individualized litigation also presents a potential for 4 inconsistent or contradictory judgments, and increases the delay and expense to all 5 parties and the court system presented by the legal and factual issues of the case. By 6 contrast, the Class action device presents far fewer management difficulties and

7 provides the benefits of a single adjudication, economy of scale, and comprehensive 8 supervision by a single court.

9

105. In addition, Class certification is appropriate under Rule 23(b)(1) or

10 (b)(2) because:

11 a. the prosecution of separate actions by the individual Members of the

12

proposed Class would create a risk of inconsistent or varying adjudication

13

which would establish incompatible standards of conduct for Securus;

14 b. the prosecution of separate actions by individual Class Members would create

15

a risk of adjudications with respect to them which would, as a practical matter,

16

be dispositive of the interests of other Class Members not parties to the

17

adjudications, or substantially impair or impede their ability to protect their

18

interests; and

19 c. Securus has acted or refused to act on grounds that apply generally to the

20

proposed Class, thereby making final injunctive relief or declaratory relief

21

described herein appropriate with respect to the proposed Class as a whole.

22

FIRST CAUSE OF ACTION

23

Violation of the California Invasion of Privacy Act

24

Cal. Penal Code §§ 630, et seq.

25

(On Behalf of the Plaintiffs Individually and the Class)

26

106. Plaintiffs and Class Members incorporate by reference the foregoing

27 allegations. 28

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1

107. The California Invasion of Privacy Act, Cal. Penal Code §§ 630, et seq.

2 (“CIPA”), states that: “The Legislature hereby declares that advances in science and 3 technology have led to the development of new devices and techniques for the 4 purpose of eavesdropping upon private communications and that the invasion of 5 privacy resulting from the continual and increasing use of such devices and 6 techniques has created a serious threat to the free exercise of personal liberties and

7 cannot be tolerated in a free and civilized society.”

8

108. Plaintiffs and Class Members made and received private, confidential,

9 and privileged attorney-client telephone calls which were recorded by Securus 10 without permission or consent of all parties and without disclosure to both parties

11 that the phone calls may be, or were being, recorded.

12

109. California Penal Code Section 636(a) prohibits “[e]very person” from

13 ‘without permission from all parties to the conversation, eavesdrop[ping] on or

14 record[ing], by means of an electronic device, a conversation, or any portion thereof, 15 between a person who is in the physical custody of a law enforcement officer or

16 other public officer, or who is on the property of a law enforcement agency or other 17 public agency, and that person's attorney, religious adviser, or licensed physician...”

18 110.

19 “person.”

20

111.

Pursuant to California Penal Code Section 632(b), Securus is a Securus violates the CIPA when it listens to, eavesdrops, or records,

21 stores, and discloses, without permission private, privileged, and confidential phone 22 calls made and received by Plaintiffs and Class Members without permission of all

23 parties.

24

112.

Securus does not have express or implied permission of all parties to

25 eavesdrop upon or record private, confidential, and privileged telephone calls to or 26 from attorneys with their clients without warning. To the contrary, Securus

27 expressly undertook a duty and obligation to Plaintiffs and Class Members when it 28 told them their calls would not be recorded. In fact, Securus was expressly told it

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1 did not have permission to record Plaintiffs and the Class’ calls because the phone

2 numbers recorded were in Securus “Do Not Record” database and “privatized” list.

3

113. Plaintiffs and Class Members did not, and do not, consent to or give

4 permission for, expressly or impliedly, Securus’ eavesdropping upon and recording

5 of their private, confidential, and privileged phone calls between attorneys and their

6 clients. Securus does not disclose to or warn Plaintiffs and Class Members that their

7 private, confidential, and privileged calls may be recorded, stored, and disclosed to 8 third parties. Plaintiffs and Class Members do not know or expect, or have any

9 reason to know or suspect, that Securus records their private, confidential, and 10 privileged phone calls between attorneys and their clients.

11

114. Neither Plaintiffs nor the Class Members did discover, or could have

12 discovered with any amount of reasonable diligence, the true facts regarding Securus’

13 recording of their private attorney-client calls until March 3, 2016 when approximately 14 2,330 emails between the Sheriff’s office and Securus’ were published in response to 15 a California Public Records Act request. Plaintiffs and the Class Members were

16 ignorant of the true facts regarding Securus’ recording of their private attorney-client 17 calls, and lacked the ability to have earlier discovered the true facts, until March 3,

18 2016 when the emails were published. Discovery of the true facts did not actually

19 occur, and could not have occurred, until after any applicable statutes of limitation,

20 including the one-year statute of limitations for violations of the CIPA.

21

115. California Penal Code Section 637.2 provides: “Any person who has

22 been injured by a violation of this chapter may bring an action against the person

23 who committed the violation for the greater of the following amounts:

24

(a) Five thousand dollars ($5,000).

25

(b) Three times the amount of actual damages, if any, sustained by the

26 Plaintiffs.

27

(c) Any person may, in accordance with Chapter 3 (commencing with

28 Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, bring an action to

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1 enjoin and restrain any violation of this chapter, and may in the same action seek

2 damages as provided by subdivision (a).

3

(d) It is not a necessary prerequisite to an action pursuant to this section that

4 the Plaintiff has suffered, or be threatened with, actual damages.”

5

116. Accordingly, Plaintiffs and the Class request that the Court issue

6 declaratory relief declaring Securus’ practice of eavesdropping on, listening to,

7 recording, disclosing, or using private, confidential, and privileged between detainees 8 and their attorney without permission of all parties unlawful.

9

117. Plaintiffs and the Attorney Class and Current Detainee Class request the

10 Court enter an injunction requiring Securus to cease the unlawful practices described

11 herein and enjoining Securus from eavesdropping on, listening to, recording, 12 disclosing, or using private, confidential, and privileged communications between

13 detainees and their attorneys without permission of all parties.

14

118. Plaintiffs and the Class Members request the Court order Securus to

15 identify, seek, obtain, encrypt, and ultimately destroy at the conclusion of this action

16 all existing recordings in their possession or the possession of third parties to whom 17 they have given access or disclosed unlawfully recorded communications.

18

119. Plaintiffs and the Attorney Class and Current Detainee Class request that

19 the Court enter an injunction ordering that Securus: (a) engage a third party

20 ombudsman as well as internal compliance personnel to monitor, conduct test, and

21 audit Securus’ safeguards and procedures on a periodic basis; (b) audit, test, and train

22 its internal personnel regarding any new or modified safeguards and procedures; (c)

23 conduct regular checks and tests on its safeguards and procedures; (d) periodically 24 conduct internal training and education to inform internal personnel how to identify

25 violations when they occur and what to do in response; and (e) meaningfully educate 26 its former and current users about their privacy rights by, without limitation, pre-

27 recorded statements at the beginning of recorded phones calls, as well as any steps 28 they must take to safeguard such rights.

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1

120. Plaintiffs and the Class Members request the Court enter an order

2 pursuant to California Penal Code Section 637.2 awarding statutory damages of 3 $5,000 to Plaintiffs and each Class Member for each phone call unlawfully recorded 4 without permission of all parties. Additionally, Plaintiffs and the Class seek pre5 and-post-judgment interest and attorneys’ fees and costs as allowed by statute. See 6 e.g., Cal. Civ. Proc. Code § 1021.5.

7

8

SECOND CAUSE OF ACTION

9

Violation of California’s Unfair Competition Law

10

Cal. Bus. & Prof. Code §§ 17200, et seq.

11

(On Behalf of Plaintiffs Individually and the Class)

12

121. Plaintiffs and Class Members incorporate the above allegations by

13 reference.

14

122. California’s Unfair Competition Law (“UCL”) prohibits unfair

15 competition, defined as “any unlawful, unfair or fraudulent business act or practice

16 and unfair, deceptive, untrue or misleading advertising and any act prohibited by

17 [California’s False Advertising Law].” Cal. Bus. & Prof. Code § 17200.

18

123. Defendant willfully violated, and continues to violate, the “unlawful”

19 prong of the UCL by violating the California Invasion of Privacy Act, Cal. Penal

20 Code § 636, and other applicable statutes and laws alleged herein.

21

124. Defendant willfully violated, and continues to violate, the “fraudulent”

22 prong of the UCL through misrepresentations, omissions, and non-disclosures which

23 are false, misleading, and have a tendency to deceive, and did deceive, Plaintiffs,

24 Class Members, and the general public, as detailed herein.

25

125. Defendant willfully violated, and continues to violate, the “unfair”

26 prong of the UCL by gaining unjust profits from the surreptitious eavesdropping on

27 and recording and dissemination of Plaintiffs’ and Class Members’ private attorney-

28

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1 client phone calls without their permission or knowledge and in violation of their

2 statutorily protected privacy rights.

3

126. The acts, omissions, misrepresentations, and non-disclosures of

4 Defendant, as described herein, further constitutes “unfair” business acts and

5 practices under the UCL in that Defendant’s conduct offends public policy against

6 invasion of privacy and seeks to profit and capitalize on the need for attorneys and

7 their clients’ for timely, private, and confidential exchange of information and full, 8 frank, and informed advice.

9

127. Plaintiffs and Class Members would not have paid for and used the

10 Securus telephone system for private and privileged phone conversations as they did,

11 or would not have paid as much for them, had they known the true facts about the 12 eavesdropping and recording.

13

128. Neither Plaintiffs nor the Class Members did discover, or could have

14 discovered with any amount of reasonable diligence, the true facts regarding Securus’

15 recording of their private attorney-client calls until March 3, 2016 when approximately

16 2,330 emails between the Sheriff’s office and Securus’ were published in response to 17 a California Public Records Act request. Plaintiffs and the Class Members were

18 ignorant of the true facts regarding Securus’ recording of their private attorney-client 19 calls, and lacked the ability to have earlier discovered the true facts, until March 3, 20 2016 when the emails were published. Discovery of the true facts did not actually

21 occur, and could not have occurred, until after any applicable statutes of limitation, 22 including the four-year statute of limitations for unfair competition law and illegal

23 business practices.

24

129. As a direct and proximate result of Defendant’s unlawful, unfair, and

25 fraudulent business practices, Plaintiffs and putative Class Members have suffered 26 injury, including but not limited to, monetary loss in connection with purchases of

27 services they would not have purchased absent Defendant’s unlawful conduct and 28

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1 false and/or misleading representations and omissions, as well as invasion of their

2 statutorily protected privacy rights.

3

130. Accordingly, Plaintiffs and the Attorney Class Members and Current

4 Detainee Class Members are entitled to, and hereby seek, an order of this Court

5 enjoining Defendant from continuing to conduct business through unlawful, unfair,

6 and/or fraudulent acts and practices, and to commence a corrective advertising

7 campaign pursuant to Section 17203 of the UCL.

8

131. Plaintiffs and Class Members are further entitled to, and hereby seek an

9 order for disgorgement and restitution of all monies acquired from the sales of the 10 Securus’ services which were unjustly acquired through acts of unlawful, unfair,

11 and/or fraudulent competition by Defendant, as well as any other further equitable 12 relief this Court may deem necessary, just, and proper under the circumstances.

13 Additionally, Plaintiffs and the Class seek pre-and-post judgment interest and 14 attorneys’ fees and costs as allowed by statute. See e.g., Cal. Civ. Proc. Code § 15 1021.5.

16

THIRD CAUSE OF ACTION

17

Fraudulent Concealment/Intentional Omission of Material Facts

18

Cal. Civ. Code §§ 1709, 1710(3)

19

(On behalf of Plaintiffs Individually and the Class)

20

132. Plaintiffs and Class Members incorporate by reference the foregoing

21 allegations.

22

133. California Civil Code Section 1709 provides that “[o]ne who willfully

23 deceives another with intent to induce him to alter his position to his injury or risk, 24 is liable for any damage which he thereby suffers.” “Deceit,” within the meaning of

25 Section 1709, includes “[t]he suppression of a fact, by one who is bound to disclose 26 it, or who gives information of other facts which are likely to mislead for want of

27 communication of that fact.” Cal. Civ. Code § 1710(3). 28

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1

134. Securus intentionally and knowingly concealed material facts from

2 Plaintiffs and Class Members that were known only to Securus prior to Plaintiffs and

3 Class Members’ purchases and use of the Securus telephone system to make private

4 attorney-client calls.

5

135. Securus intentionally and knowingly concealed the aforementioned

6 material facts from Plaintiffs and Class Members with the intent to induce them to

7 purchase services from and use, and continue to purchase services from and use, the 8 Securus phone system to make private attorney-client calls.

9

136. Neither Plaintiffs nor the Class Members did discover, or could have

10 discovered with any amount of reasonable diligence, the true facts regarding Securus’

11 recording of their private attorney-client calls until March 3, 2016 when approximately 12 2,330 emails between the Sheriff’s office and Securus’ were published in response to

13 a California Public Records Act request. Plaintiffs and the Class Members were 14 ignorant of the true facts regarding Securus’ recording of their private attorney-client 15 calls, and lacked the ability to have earlier discovered the true facts, until March 3,

16 2016 when the emails were published. Discovery of the true facts did not actually 17 occur, and could not have occurred, until after any applicable statutes of limitation,

18 including the three-year statute of limitations for concealment.

19

137. Securus had, and has, a duty to disclose the concealed information

20 because Plaintiffs and Class Members did not know of the concealed facts prior to

21 purchasing and using the Securus telephone system to make private attorney-client 22 calls, nor could they reasonably be expected to learn or discover such concealed facts

23 prior thereto. Further, Securus does not disclose that it gives access to third parties 24 to eavesdrop on, and listen to the recordings of, private attorney-client phone calls.

25 In fact, it affirmatively represents to the contrary.

26

138. Plaintiffs and Class Members would not have purchased or used the

27 Securus phone system to make private attorney-client calls, or would not have paid 28 as much for telephone calls, had they known of the concealed information.

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1

139. As a direct and proximate result of Securus’ fraudulent concealment of

2 material facts, Plaintiffs and Class Members have suffered injury, including but not

3 limited to, monetary loss in connection with purchases of products and services they

4 would not have purchased absent Securus’ fraudulent omissions and non-

5 disclosures, as well as invasion of their statutorily protected privacy rights.

6

140. Accordingly, Plaintiffs and Class Members are entitled to, and hereby

7 seek, actual damages, punitive damages, reasonable attorneys’ fees and costs under 8 Cal. Civ. Proc. Code § 1021.5, pre-and post-judgment interest at the applicable legal

9 rate, and any and all further equitable relief that this Court deems appropriate.

10

FOURTH CAUSE OF ACTION

11

Fraud and Intentional Misrepresentation

12

Cal. Civ. Code §§ 1709, 1710(1)

13

(On behalf of Plaintiffs Individually and the Class)

14

141. Plaintiffs and Class Members incorporate the above allegations by

15 reference.

16

142. California Civil Code Section 1709 provides that “[o]ne who willfully

17 deceives another with intent to induce him to alter his position to his injury or risk,

18 is liable for any damage which he thereby suffers.”

19

143. “Deceit,” within the meaning of Section 1709, includes “[t]he

20 suggestion, as a fact, of that which is not true, by one who does not believe it to be

21 true.” Cal. Civ. Code § 1710(1).

22

144. Securus intentionally and knowingly misrepresented and/or suggested

23 untrue or misleading facts to Plaintiffs and Class Members concerning its telephone 24 services, including but not limited to, the representation that it complies with all

25 governing federal and state privacy laws.

26

145. On or about May 29, 2012 Richard A. (“Rick”) Smith, President and

27 Chief Executive Office of Securus issued and published its Customer Integrity 28 Pledge to its “Customers — Inmates, Friends, Family, and the Corrections

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1 Community” (the “Pledge”) with the intent that they reach an intended audience and

2 population of which Plaintiffs and the Class were members of (the “Target

3 Audience”). Securus promised the Plaintiffs, the Class, the Corrections Community,

4 and the public it:

5

(a) would be open and honest in all its dealings;

6

(b) would always be truthful in what it can do and what it can't do in

7

responses to Plaintiffs, the Class’, and the public’s questions and requests;

8

(c) would provide the most technologically advanced audio and video

9

communications platform to allow calls with a high level of security; and

10

(d) understood that confidentiality of calls is critical, and would follow all

11

Federal, State, and Local laws in the conduct of its business.

12 These statements were and are false and misleading.

13

146. In fact, Securus is not open and honest, is not truthful about what it can

14 and cannot do, does not have a high level of security in phone calls made by Plaintiffs 15 and the Class, and does not follow all Federal, State, and Local laws. Specifically,

16 at the same time it is making the representation to the Target Audience that it follows 17 all applicable laws, it is entirely disclaiming that obligation in its agreements with

18 law enforcement.

19

147. During the Class Period and up until on or about March 6, 2014, when

20 Plaintiff Elliott and the Attorney Class Members called the San Diego jails, a

21 message played affirmatively stating that the attorney phone calls were not being 22 recorded. Various staff members of the Sheriff’s Investigations Unit, and Sanford 23 Toyen, the Sheriff’s lawyer, affirmatively stated and represented to Plaintiff Elliott 24 and the Attorney Class Members that if an attorney's telephone number was on the

25 Do Not Record list in Securus’ system, attorney/client calls would not be recorded 26 and a message would play to that effect. This statement was false and misleading.

27

148. Commencing on about March 6, 2014, Plaintiff Elliott and the Attorney

28 Class Members noticed attorney phone calls to the San Diego jails no longer played

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1 a message stating the call is not being recorded. From the period commencing on or 2 about March 6, 2014 to the present, various staff members of the Sheriﬀ’s Detentions 3 Investigations Unit, and Sanford Toyen, the Sheriff’s lawyer, affirmatively stated 4 and represented to Plaintiff Elliott and the Attorney Class Members that the calls are 5 still not being recorded; they just do not play the message anymore. And if a call is 6 being recorded, a message to that eﬀect will play every 45 seconds or so. These

7 statements were and are false and misleading.

8

149. Securus has undertaken the duties and obligations not to record private

9 attorney-client conversations and communications, both directly to users of the 10 Securus system, and in its contracts with law enforcement agencies, including

11 without limitation with the San Diego County Sheriff. By contractually and in its 12 promotion and advertising campaign promising and representing that it won’t record

13 attorney-client phone calls, Securus made such fraudulent misrepresentations to the

14 Plaintiffs and the Class with intent and reason to expect that its terms would be 15 repeated and communicated to the Plaintiffs and the Class by the Sheriff and his staff

16 and lawyer(s), other law enforcement, and the correctional community in order to 17 induce them to use and pay for using the Securus telephone communications system

18 as they did.

19

150. On November 12, 2015, Securus issued a press release in response to

20 The Intercept article stating, “It is very important to note that we have found

21 absolutely no evidence of attorney-client calls that were recorded without the 22 knowledge and consent of those parties. Our calling systems include multiple

23 safeguards to prevent this from occurring. Attorneys are able to register their 24 numbers to exempt them from the recording that is standard for other inmate calls.”

25 These statements were and are false and misleading.

26

151. On November 13, 2015, Securus issued a press release stating:

27 28

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1

(a) “Despite allegations from The Intercept and other parties, we have seen

2

no evidence to date of any attorney-client privileged communications that

3

were recorded in error;

4

(b) Data about the time and phone numbers of a call are generated for

5

virtually every call that is placed in the U.S.;

6

(c) “Our calling systems include multiple safeguards to prevent attorney-

7

client recordings from occurring. Licensed attorneys are able to register their

8

numbers or a specific call to exempt them from recording;

9

(d) . . . we have seen no evidence to date of recorded calls that would fall

10

under that category. Without direct access to the stolen information, Securus

11

cannot confirm whether any such recorded calls exist; and

12

(e) Securus does not sell call recordings or information to our law

13

enforcement or correctional customers or anyone else. We record calls and

14

provide forensic software to our customers based on the stipulations of our

15

service contracts and in accordance with federal, state and local laws.

16

Retention of these records is also conducted according to laws in various

17

jurisdictions.”

18 These statements were and are false and misleading.

19

152. Specifically, and without limitation, Securus’ sells access to call

20 recordings and information to law enforcement and correction customers and others

21 through its “THREADS” system. Specifically, in connection with its THREADS

22 system, Securus states to the law enforcement and corrections community on its

23 website that,

24

“Traditionally, communications data available for analysis by corrections and

25

law enforcement has been limited to a specific facility or single investigator.

26

This data typically resided on someone's computer or in software that only a few

27

agents could use. This limitation caused delays or even hindered an

28

investigation. Now, nationwide, more than 400 law enforcement officers are

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1

using THREADS investigative software to uncover focused leads based on their

2

targets/suspects. The THREADS database includes the following and continues

to grow every day: More than 600,000 people with billing name and address

3

(not incarcerated); More than 950,000 inmates; More than 1,900 correctional

4

facilities; and More than 100,000,000 call records between inmates and called

5

parties.”1

6 153. Securus further states, without limitation, in connection with its

7 THREADS system that,

8

“The THREADS platform brings to market a nationwide, investigative 9
community that bridges the gap between law enforcement agencies and

10

correctional facilities. THREADS allows investigators to reach from coast to

11

coast to uncover focused leads in a matter of seconds. The data available for

12

analysis includes that of any corrections facility enrolled in our nationwide

13

community and residing on SCP” and “The THREADS platform takes full

14

advantage of this vast amount of data to provide a centralized, nationwide

system producing actionable intelligence and focused leads immediately upon

15

install to investigators from coast to coast.2

16 154. Securus also represents to the law enforcement and corrections

17 community on its website that the THREADS system can “Customize information

18 and reporting to filter out irrelevant calls, such as girlfriends or legal counsel.”3

19 155. Securus financial performance depends on the number and length of

20 phone calls made on its system. Securus makes money when the call is connected,

21 regardless of how long it lasts, and receives more revenue the longer the call lasts.

22 156. Securus’ claims about the high level of security, its technological

23 sophistication, the capabilities of its system, that it does not sell recorded call

24

25 1 http://www.securustechnologies.com/solutions/investigative-solutions/investigation/securus26 threads and the “Download Agreement“ link thereon (last visited November 6, 2016)

27 2 Id.

28 3 Id.

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1 information, and representations to the Plaintiffs and the Class that attorney-client

2 phone calls will not be recorded (the “Technology Promotional Claims”) has been 3 the heart and soul of its advertising and promotional campaign and brand used to 4 drive the use and growth of its telecommunications system. Since January 1, 2008 5 and through the Class Period, the Technology Promotional Claims have been touted 6 to not only Plaintiffs, the Class, and the Target Audience, but also its venture capital

7 and debt financiers to drive its enterprise value.

8

157. Securus has effectively so branded itself by its Technology Promotional

9 Claims as to be married to them. Securus is so married to its Technology 10 Promotional Claims, they are so core, so central, so important, and so material to

11 Securus’ brand, that it could not falsely make them without being aware that they 12 are false.

13

158. Securus made the foregoing affirmative misrepresentations to the

14 Target Audience with reason to expect that it be repeated and acted upon by 15 Plaintiffs and the Class. When Defendant contracted with the San Diego County

16 Sheriff, it represented calls between detainees and attorneys placed on the “Do Not 17 Record” list would not be recorded and that its calling system would prevent

18 attorney-client recordings from occurring, and it fully expected and knew that the

19 misrepresentation would be repeated to the Plaintiffs and the Class.

20

159. Securus made the foregoing affirmative misrepresentations to

21 Plaintiffs, the Class, and the Target Audience class of persons with an intent to

22 deceive everyone in that class.

23

160. Securus’ representations are false and misleading because, without

24 limitation, Securus was not open and honest in its dealings with Plaintiffs and the

25 Class, was not truthful about what it could and could not do in connection with its 26 system and recording and the “Do Not Record” representation, did not allow calls

27 by Plaintiffs and the Class with a high level of security, and does not follow all local, 28 state, and federal laws because it does in fact record attorney-client phone calls and

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1 track, monitor, record, and disclose Plaintiffs’ and Class Members’ phone calls to

2 third parties for financial gain without their informed consent or knowledge, and in

3 violation of their statutorily protected privacy rights.

4

161. Securus statements and representations were, and are, false and

5 misleading because Securus expressly knew at the time it issued its November, 2015

6 press release that it had extensive evidence of its recording of attorney-client phone

7 calls.

8

162.

Securus knew that its representations and suggestions were false and/or

9 misleading when made, or made the representations and suggestions recklessly and 10 without regard for their truth.

11

163. Securus intentionally and knowingly misrepresented and/or suggested

12 the aforementioned untrue or misleading facts to Plaintiffs, Class Members, and the

13 Target Audience with the intent to induce them to purchase and use the Securus 14 telephone system. Securus’ knowing and intentional misrepresentation in its 15 Technology Promotional Claims were part of a core, central, widespread, pervasive,

16 nationwide, and decade(s) long advertising campaign.

17

164. Securus made the foregoing fraudulent misrepresentations to the

18 Plaintiffs, the Class, and the Target Audience with intent and reason to expect that 19 its terms would be repeated and communicated to the Plaintiffs, the Class, and the 20 Target Audience in order to induce them to use and pay for using the Securus

21 telephone communications system as they did.

22

165. Plaintiffs and the Class acted in justifiable reliance upon the foregoing

23 fraudulent misrepresentations in using and paying for using the Securus telephone 24 communications system as they did.

25

166. Plaintiffs and Class Members would not have purchased the Securus

26 products and services, or would not have paid as much for them, had they known the

27 truth about Securus’ violation of their statutorily protected privacy rights. 28

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1

167. Neither Plaintiffs nor the Class Members did, or could have discovered

2 with any amount of reasonable diligence, the true facts regarding Securus’ recording 3 of their private attorney-client calls until March 3, 2016 when approximately 2,330 4 emails between the Sheriff’s office and Securus’ were published in response to a 5 California Public Records Act request. Plaintiffs and the Class Members were 6 ignorant of the true facts regarding Securus’ recording of their private attorney-client

7 calls, and lacked the ability to have earlier discovered the true facts, until March 3, 8 2016 when the emails were published. Discovery of the true facts did not actually

9 occur, and could not have occurred, until after any applicable statutes of limitation, 10 including the three-year statute of limitations for fraud.

11

168. As a direct and proximate result of Defendant Securus’ intentional

12 misrepresentations, Plaintiffs and Class Members have suffered injury, including but

13 not limited to, monetary loss in connection with purchases of products and services 14 they would not have purchased absent Securus’ false and/or misleading 15 representations, as well as invasion of their statutorily protected privacy rights.

16

169. Accordingly, Plaintiffs and Class Members are entitled to, and hereby

17 seek, actual damages, punitive damages, reasonable attorneys’ fees and costs under

18 Cal. Civ. Proc. Code § 1021.5, pre-and post-judgment interest at the applicable legal

19 rate, and any and all further equitable relief that this Court deems appropriate.

20

FIFTH CAUSE OF ACTION

21

Negligence

22

(On Behalf of Plaintiffs Individually and the Class)

23

170. Plaintiffs and the Class Members incorporate the above allegations by

24 reference.

25

171. In providing telecommunications products and services to Plaintiffs and

26 the Class, Securus owed a duty to exercise reasonable care in safeguarding and

27 protecting private, confidential, and privileged attorney-client phone calls. This duty 28 included, among other things, taking reasonable measures to implement and

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1 maintain reasonable procedures to protect the rights of Class Members in compliance

2 with applicable law, including, but not limited to procedures and policies to: (a) 3 supervise, restrict, limit, and determine: (i) whether any conversation between a 4 detainee and his or her attorney is, or was, being recorded; (ii) whether all parties had 5 given their permission to have their conversation recorded; and (iii) whether the 6 conversation is being, or had in fact been, recorded; and (b) how long after discovery

7 of any recordings, whether they were lawfully obtained or not, the list of calls and the 8 recordings themselves should be retained before being “purged” destroyed and notice

9 given to the injured persons; (c) when and how to secure and encrypt any recordings 10 of illegal calls pending notice and destruction; (d) when and how to notify Plaintiffs

11 and the Class Members of the unlawful recordings; and (e) under what circumstances 12 the recordings, whether lawfully obtained or not, may be sold, transferred, reviewed,

13 disclosed, or released to third parties.

14

172. In providing services to the Plaintiffs and the Class, Securus owed them

15 a duty to exercise reasonable care, without limitation in: (a) obtaining permission to

16 record their conversations; (b) adequately securing the privacy of attorney-client 17 telephone calls and the privilege applicable to such calls; and (c) protecting the

18 content of Plaintiffs and the Class’ attorney-client phone calls from unauthorized

19 eavesdropping, listening in, recording, storage, disclosure, and access and use.

20

173. Securus’ systems, policies, and procedures for handling the private,

21 confidential, and privileged information of attorney-client phone calls were intended 22 to, and did, affect Plaintiffs and the Class. Securus was aware that by providing

23 phone products and services to the attorney-client users of its systems, it had a 24 responsibility to take reasonable measures to protect the phone calls from being

25 eavesdropped on or recorded and not to provide access to law enforcement, 26 prosecutors, or other third parties without restriction.

27

174. The duty Securus owed to Plaintiffs and Class Members to protect their

28 private, confidential, and privileged attorney-client phone calls is also underscored

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1 by the California Invasion of Privacy Act, which recognizes the importance of

2 maintaining the confidentiality of attorney-client phone calls and was established to

3 protect individuals from improper recording of such calls.

4

175. Additionally, Securus had a duty to timely disclose to and/or warn

5 Plaintiffs and Class Members that their private, confidential, and privileged calls

6 were, had been, or were reasonably believed to have been recorded. Timely

7 disclosure was necessary and appropriate so that Plaintiffs and Class Members could 8 have, among other things, timely pursue and exhaust available remedies, and

9 undertake appropriate measures to avoid such recordings and prevent or mitigate the 10 risk of unlawful recording and disclosure.

11

176. There is a very close connection between Securus’ failure to take

12 reasonable measures to protect attorney-client users of its systems and the injury to

13 Plaintiffs and the Class. When individuals have their private, confidential, and

14 privileged attorney-client phone calls recorded they: (a) are at risk for improper use 15 of such recordings by law enforcement, prosecutors, and other parties, and of having

16 their privacy rights violated; and (b) need to incur additional costs and expense to 17 protect themselves from such invasions of privacy.

18

177. Securus is legally responsible for such unlawful eavesdropping and

19 recordings and the violations of the privacy rights of the attorney-client users of its

20 service because it failed to take reasonable privacy and recording measures. If

21 Securus had taken reasonable privacy and recording security measures, private, 22 confidential, and privileged phone calls of attorney-client users of Securus’ products

23 and services would not have been eavesdropped on or recorded.

24

178. The policy of preventing future harm weighs in favor of finding a

25 special relationship between Securus and the Class. Securus’ attorney-client users 26 of its telecommunications products and services count on Securus to keep their

27 attorney-client phone calls private. Indeed, they are captive users. If Defendant is 28 not held accountable for failing to take reasonable privacy security and recording

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1 measures to protect the attorney-client users of their system, they will not take the

2 steps that are necessary to protect against future invasions of privacy and rights.

3

179. It was foreseeable that if Securus did not take reasonable security

4 measures, the private, confidential, and privileged attorney-client phone calls of

5 Plaintiffs and Members of the Class would be recorded and unlawfully disclosed.

6 Securus should have known to take precautions to secure such attorney-client calls.

7

180. Securus breached its duty to exercise reasonable care in protecting the

8 private attorney-client phone calls of Plaintiffs and the Class by, without limitation:

9 (a) failing to implement and maintain adequate recording and security measures to 10 safeguard phone calls; (b) failing to monitor its systems to identify unlawful activity;

11 (c) allowing unauthorized recording and access to the private attorney-client phone 12 calls of Plaintiffs and the Class; (d) “purging” such calls and recordings from its call

13 lists without notice to Plaintiffs and the Class; and (e) failing to otherwise prevent

14 unauthorized eavesdropping, recording, listening to, or disclosure of such calls.

15

181. Securus breached its duty to timely warn or notify Plaintiffs and the

16 Class about the unlawful recordings. Securus has failed to issue any warnings to its 17 current and former attorney-client users of its systems affected by the recordings.

18 Additionally, Securus was, or should have been, aware of the unlawful recordings

19 as early as July 10, 2012.

20

182. Neither Plaintiffs nor the Class Members did discover, or could have

21 discovered with any amount of reasonable diligence, the true facts regarding Securus’

22 recording of their private attorney-client calls until March 3, 2016 when approximately

23 2,330 emails between the Sheriff’s office and Securus’ were published in response to

24 a California Public Records Act request. Plaintiffs and the Class Members were

25 ignorant of the true facts regarding Securus’ recording of their private attorney-client 26 calls, and lacked the ability to have earlier discovered the true facts, until March 3,

27 2016 when the emails were published. Discovery of the true facts did not actually 28

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1 occur, and could not have occurred, until after any applicable statutes of limitation,

2 including the two-year statute of limitations for negligence.

3

183. But for Securus’ failure to implement and maintain adequate measures

4 to protect the privacy and confidentiality of the Plaintiffs and Class Members’

5 attorney-client calls and conversations, and its failure to monitor its systems to

6 identify unlawful recordings and suspicious activity, the private recording of

7 Plaintiffs and Class Members would not have been made, and the Attorney Class 8 and Current Detainee Class would not be at a heightened risk of unlawful recordings

9 in the future.

10

184. Securus’ negligence was a substantial factor in causing harm to

11 Plaintiffs and Class Members and in violating their CIPA and common law privacy 12 rights.

13

185. As a direct and proximate cause and result of Securus’ failure to

14 exercise reasonable care and use reasonable measures to safeguard the private, 15 confidential, and privileged nature of the recorded attorney-client phone calls, such

16 calls of Plaintiffs and the Class attorney-client users of the Securus 17 telecommunications services were eavesdropped on, listened to, recorded, stored,

18 and disclosed, such that unauthorized individuals could use the information to 19 compromise Plaintiffs privacy rights. Plaintiffs and the Class face a heightened risk 20 of such invasions of privacy in the future.

21

186. Members of the Class have also suffered economic damages, including

22 incurring additional legal costs and expenses and charges for phone calls they would

23 not have otherwise incurred and paid.

24

187. Neither Plaintiffs nor other Class Members contributed to the unlawful

25 conduct set forth herein, nor did they contribute to Securus’ unlawful eavesdropping, 26 listening to, recording, or storage of attorney-client phone calls, nor to the

27 insufficient measures to safeguard the private nature of such calls and conversations. 28

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1

188. Plaintiffs and the Class seek compensatory damages and punitive

2 damages with pre-and-post judgment interest, the costs of suit, attorneys’ fees, and

3 other and further relief as this Court deems just and proper.

4

SIXTH CAUSE OF ACTION

5

Unjust Enrichment

6

(On Behalf of Plaintiffs Individually and the Class)

7

189. Plaintiffs and the Class Members incorporate the above allegations by

8 reference.

9

190. “Under California law, the elements of unjust enrichment are: (1)

10 receipt of a benefit; and (2) unjust retention of the benefit at the expense of another.”

11 Valencia v. Volkswagen Grp. of Am. Inc, No. 15-CV-00887-HSG, 2015 WL 12 4747533, at *8 (N.D. Cal. Aug. 11, 2015). See also, Munoz v. MacMillan, 195 Cal.

13 App. 4th 648, 661 (2011) (“Common law principles of restitution require a party to

14 return a benefit when the retention of such benefit would unjustly enrich the 15 recipient; a typical cause of action involving such remedy is ‘quasi-contract.”)

16

191. “When a plaintiff alleges unjust enrichment, a court may construe the

17 cause of action as a quasi-contract claim seeking restitution.” Astiana v. Hain

18 Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015). “Whether termed unjust 19 enrichment, quasi-contract, or quantum meruit, the equitable remedy of restitution 20 when unjust enrichment has occurred “is an obligation (not a true contract [citation])

21 created by the law without regard to the intention of the parties, and is designed to

22 restore the aggrieved party to his or her former position by return of the thing or its

23 equivalent in money.” F.D.I.C. v. Dintino, 167 Cal. App. 4th 333, 346 (2008).

24

192. Plaintiffs and Class Members conferred non-gratuitous benefits upon

25 Defendant by paying for recordings Defendant could resell to law enforcement 26 customers and profits derived therefrom.

27

193. Defendant accepted or retained such benefits with knowledge that

28 Plaintiffs and Class Members did not give permission to have their personal

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1 information disseminated to third parties for financial gain. Defendant has been

2 unjustly enriched in retaining the revenues from Plaintiffs and Class Members’ 3 purchases of the Securus’ phone services, which retention under these circumstances 4 is unjust and inequitable because Defendant misrepresented the facts concerning the 5 private nature of their phone calls and recording thereof without their permission or 6 knowledge.

7

194. Plaintiffs and Class Members would not have purchased phone

8 services had they known that Securus was recording, monitoring, collecting, and

9 disseminating their private phone calls to third parties, including law enforcement 10 officials and prosecutors, for financial gain without their permission or knowledge,

11 and in violation of their statutorily protected privacy rights

12

195. Neither Plaintiffs nor the Class Members did discover, or could have

13 discovered with any amount of reasonable diligence, the true facts regarding Securus’

14 recording of their private attorney-client calls until March 3, 2016 when approximately 15 2,330 emails between the Sheriff’s office and Securus’ were published in response to

16 a California Public Records Act request. Plaintiffs and the Class Members were 17 ignorant of the true facts regarding Securus’ recording of their private attorney-client

18 calls, and lacked the ability to have earlier discovered the true facts, until March 3, 19 2016 when the emails were published. Discovery of the true facts did not actually 20 occur, and could not have occurred, until after any applicable statutes of limitation,

21 including the four-year statute of limitations for unjust enrichment.

22

196. As a direct and proximate result of Defendant’s false and/or misleading

23 representations, assertions of fact, omissions of material fact, non-disclosures, and 24 illegal listening in on, recording, collecting, and disseminating private telephone

25 calls, Plaintiffs and Class Members have suffered concrete harm and injury, 26 including, but not limited to, monetary loss in connection with purchases of services,

27 and an unconstitutional and illegal intrusion and invasion of their lawfully protected 28

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1 rights of privacy and effective assistance of counsel which they would otherwise not

2 have purchased absent Defendant’s unlawful conduct, as alleged herein.

3

197. Defendant’s retention of the non-gratuitous benefits conferred on them

4 by Plaintiffs and Class Members would be unjust and inequitable. Plaintiffs and Class

5 Members are entitled to seek disgorgement and restitution of wrongful profits,

6 revenue, and benefits conferred upon Defendant in a manner established by this Court.

7

198. Plaintiffs and Class Members are further entitled to, and hereby seek,

8 reasonable attorneys’ fees and costs under Cal. Civ. Proc. Code § 1021.5, pre-and

9 post-judgment interest at the applicable legal rate, as well as any and all further 10 equitable relief that this Court deems appropriate.

11

12

PRAYER FOR RELIEF

13

WHEREFORE, Plaintiffs, individually and on behalf of the proposed Class,

14 request the Court:

15

a. Certify this case as a Class action on behalf of the Class defined above,

16 appoint Juan Romero, Frank Tiscareno, and Kenneth Elliott as Class representatives,

17 and appoint the Law Offices of Ronald A. Marron, APLC and Robert Teel as Class

18 counsel;

19

b. Award declaratory and other equitable relief as is necessary to protect

20 the interests of Plaintiffs and Class Members;

21

c. Award injunctive relief as is necessary to protect the interests of

22 Plaintiffs and Attorney Class Members and Current Detainee Class Members;

23

d. Award restitution and damages to Plaintiffs and Class Members in an

24 amount to be determined at trial;

25

e. Order disgorgement of Defendant’s unjustly acquired revenue, profits,

26 and other benefits resulting from their unlawful conduct for the benefit of Plaintiffs

27 and Class Members in an equitable and efficient manner determined by the Court;

28

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1

f. Order the imposition of a constructive trust upon Defendant such that its

2 enrichment, benefit, and ill-gotten gains may be allocated and distributed equitably by

3 the Court to and for the benefit of Plaintiffs and the Class Members.

4

g. Award Plaintiffs and Class Members their reasonable litigation

5 expenses and attorneys’ fees;

6

h. Award Plaintiffs and Class Members pre- and post-judgment interest to

7 the extent allowable; and

8

i. Award such other and further relief as equity and justice may require.

9

JURY DEMAND

10 Plaintiffs hereby demand a trial by jury on all issues so triable.

11 Dated: November 7, 2016 12 13 14 15 16 17

/s/ Robert L. Teel By: Robert L. Teel LAW OFFICE OF ROBERT L. TEEL ROBERT L. TEEL lawoffice@rlteel.com 207 Anthes Ave., Suite 201 Langley, Washington 98260 Telephone: (866) 833-5529 Facsimile: (855) 609-6911

18

LAW OFFICES OF RONALD A.

19

MARRON, APLC

RONALD A. MARRON

20

SKYE RESENDES

21

ALEXIS WOOD

KAS GALLUCCI

22

651 Arroyo Drive

23

San Diego, California 92103

24

Telephone: (619) 696-9006

Facsimile: (619) 564-6665

25

26

Attorneys for Plaintiffs and the Proposed Class

27

28

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Romero et al v. Securus Technologies, Inc. No. 16-cv-1283 SECOND AMENDED COMPLAINT

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 JUAN ROMERO, FRANK TISCARENO,

12

and KENNETH ELLIOTT, on behalf of themselves, and all others similarly

13 situated,

14

Plaintiff,

15 v.

16 SECURUS TECHNOLOGIES, INC.,

17

Defendant.

Case No.: 16cv1283 JM (MDD)
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND DENYING DEFENDANT’S MOTION TO STRIKE CLASS ACTION ALLEGATIONS

18

19

Plaintiffs Juan Romero, Frank Tiscareno, and Kenneth Elliott, on behalf of

20 themselves and all others similarly situated, filed a first amended complaint (“FAC”)

21 against Defendant Securus Technologies on July 26, 2016. (Doc. No. 8.) Plaintiffs are

22 two former inmates and a criminal defense attorney, all of whom used Defendant’s

23 telephone systems to make calls to and from certain correctional facilities in California.

24 Plaintiffs allege that Defendant recorded a number of attorney-client calls in violation of

25 California law. The FAC alleges (1) violations of the California Invasion of Privacy Act

26 (“CIPA”), Cal. Penal Code § 636, (2) violations of California Business & Professions

27 Code section 17200 (“section 17200”), (3) fraudulent concealment/omission,

28

1 16cv1283 JM (MDD)

1 (4) fraudulent misrepresentation, (5) negligence, (6) unjust enrichment, and (7)

2 conversion.

3

Defendant moves to dismiss the FAC for (1) lack of standing, (2) failure to exhaust

4 administrative remedies, and (3) failure to state a claim. (Doc. No. 11.) Separately,

5 Defendant also moves to strike the class action allegations. (Doc. No. 12.) For the

6 following reasons, the court grants Defendant’s motion to dismiss in part and denies it in

7 part, and the court denies Defendant’s motion to strike.

8

DISCUSSION

9

The court will first address Defendant’s motion to dismiss,1 and then will address

10 Defendant’s motion to strike the class allegations.

11

12
13 1Defendant requests judicial notice of Exhibit A to its motion to dismiss—a printout from the Utility Contact System Search database, obtained on the California Public Utilities
14 Commission (“CPUC”) website, which purports to demonstrate that Securus is a public 15 utility. Federal Rule of Evidence 201 provides that courts may take judicial notice
of facts that are not subject to reasonable dispute because they are generally known or are 16 capable of accurate and ready determination. See Fed. R. Evid. 201(b). While matters of 17 public record are proper subjects of judicial notice, a court may take notice only of the
existence and authenticity of an item, not the truth of its contents. See Lee v. City of Los 18 Angeles, 250 F.3d 668, 689–90 (9th Cir. 2001). Under these rules, the court can take 19 judicial notice of “public records and government documents available from reliable
sources on the Internet, such as websites run by governmental agencies.” Gerritsen v. 20 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1033 (C.D. Cal. 2015) (internal 21 quotations omitted).

22 With these principles in mind, the court grants Defendant’s request for judicial notice of
23 Exhibit A, (Doc. No. 11-2), but notes that its argument based on that exhibit is meritless if not disingenuous. While, as Defendant points out, CIPA section 632 contains an
24 exemption from liability for public utilities in certain circumstances, section 636—the
25 section at issue in this case—only provides an exemption for a public utility employee “who listens in to conversations for the limited purpose of testing or servicing
26 equipment.” Despite the misleading assertion in its reply brief that section 636 “provides
27 an exemption for public utilities,” (Doc. No. 18 at 16), and its “see also” citation to section 636(c) in its opening brief, (Doc. No. 11 at 22), Defendant does not actually make
28 the argument that it listened in on conversations to test or service its equipment. Thus,

2

16cv1283 JM (MDD)

1 I. DEFENDANT’S MOTION TO DISMISS

2

A. Standing

3

Defendant first moves to dismiss the FAC under Federal Rule of Civil Procedure

4 12(b)(1), arguing that the court does not have subject matter jurisdiction over Plaintiffs’

5 claims because Plaintiffs do not have standing to sue in federal court.

6

1. Legal Standards

7

Federal courts are courts of limited jurisdiction. “Without jurisdiction the court

8 cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it

9 ceases to exist, the only function remaining to the court is that of announcing the fact and

10 dismissing the cause.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94

11 (1998). As the party putting the claims before the court, Plaintiffs bear the burden of

12 establishing jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

13 (1994).

14

There is no subject matter jurisdiction without standing, and the “irreducible

15 constitutional minimum” of standing consists of three elements. Lujan v. Defenders of

16 Wildlife, 504 U.S. 555, 560 (1992). A plaintiff must have (1) suffered an injury in fact,

17

18
19 based on Plaintiff’s claims under section 636, it is irrelevant whether Defendant is a public utility.
20
21 As for Plaintiffs’ requests for judicial notice, for the reasons stated above, and because Defendant does not oppose the request, the court takes judicial notice of Plaintiffs’
22 Exhibit A. The court declines to take judicial notice of Exhibit B, a screenshot of 23 Defendant’s website listing the facilities it serves, because the particular facilities
Defendant served during the relevant time period cannot be readily and accurately 24 determined from an undated screenshot. And for the limited purpose of determining what 25 information has been put into the public realm, but not for the truth of their contents, the
court takes judicial notice of Exhibit C, a printout of Defendant’s May 12, 2012, 26 “Customer Integrity Pledge” signed by Defendant’s Chief Executive Officer Richard A. 27 Smith, which remains readily available on Defendant’s website, and Exhibits D and E,
printouts of press releases issued by Defendant that also remain readily available on 28 Defendant’s website.

3

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1 (2) which is fairly traceable to the challenged conduct of the defendant, and (3) which is

2 likely to be redressed by a favorable judicial decision. Id. at 560–61. To establish injury

3 in fact—the relevant element here—the plaintiff must show that he or she suffered “an

4 invasion of a legally protected interest” that is “concrete and particularized” and “actual

5 or imminent, not conjectural or hypothetical.” Id. at 560 (internal quotations omitted).

6 “Where, as here, a case is at the pleading stage, the plaintiff must clearly allege facts

7 demonstrating each element.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as

8 revised (May 24, 2016) (internal quotations and alterations omitted). “In a class action,

9 standing is satisfied if at least one named plaintiff meets the requirements.” Bates v.

10 United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007).

11

2. Methods for Attacking Standing

12

A party may make either a facial or factual attack on subject matter jurisdiction.

13 See, e.g., Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003).

14 In resolving a facial challenge, the court considers whether “the allegations contained in

15 [the] complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for

16 Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). The court must accept the

17 allegations as true and must draw all reasonable inferences in the plaintiff’s favor. Wolfe

18 v. Strankman, 392 F.3d 358 (9th Cir. 2004). In resolving a factual challenge, the court

19 may consider evidence outside the complaint and ordinarily “need not presume the

20 truthfulness of the plaintiff’s allegations.” Safe Air for Everyone, 373 F.3d at 1039.

21 “Once the moving party has converted the motion to dismiss into a factual motion by

22 presenting affidavits or other evidence properly brought before the court, the party

23 opposing the motion must furnish affidavits or other evidence necessary to satisfy its

24 burden of establishing subject matter jurisdiction.” Id. At the motion to dismiss stage,

25 standing is demonstrated by allegations of “specific facts plausibly explaining” why the

26 requirements are met. Barnum Timber Co. v. EPA, 633 F.3d 894, 899 (9th Cir. 2011).

27

3. Analysis

28

In this case, Defendant makes a factual attack on subject matter jurisdiction,

4 16cv1283 JM (MDD)

1 arguing that because the evidence does not bear out that Plaintiffs calls were recorded,

2 Plaintiffs did not suffer an injury and therefore do not have standing to sue.

3

a. Defendant’s Declaration Does Not Justify Dismissal

4

In support of its argument, Defendant filed with its motion to dismiss a declaration

5 by Ian Jones, Defendant’s Director of Support Services. In his declaration, Mr. Jones

6 states that Defendant’s Senior Vice President of Operations asked him to review all

7 Securus calls made by Plaintiffs Romero and Tiscareno from 2008 until the present to

8 determine whether any of their calls with an attorney had been monitored or recorded.

9 (Doc. No. 11-1 at 2.) Mr. Jones thus searched all call records in Defendant’s “possession,

10 custody, or control from all detention facilities within the United States for records of

11 calls involving” Plaintiffs. According to Mr. Jones, Defendant did not record or monitor

12 any calls between Plaintiff Romero or Plaintiff Tiscareno and their respective attorneys.2

13 (Id.) Mr. Jones also states that he “searched call records for the attorney telephone

14 numbers listed in Paragraph 44 of Plaintiffs’ First Amended Complaint[, and] Securus

15 does not have any recordings of calls made to or from those phone numbers, as any

16 potential recordings were purged shortly after they were made.” (Id. at 3.) Notably, Mr.

17 Jones does not say that Defendant never recorded any calls to or from those attorney

18 telephone numbers, but only that Securus does not have any recordings of those calls, as

19 any potential recordings have been purged.3

20

While the court may consider Mr. Jones’s declaration in evaluating Defendant’s

21 factual attack on subject matter jurisdiction, the Ninth Circuit has made clear that “where

22

23 2 Mr. Jones also declares that while some fields in his summary report have no
24 information, he reviewed those calls and confirmed that none were made to attorneys.
25 (Doc. No. 11-1 at 2.) 3 Mr. Jones submitted a second declaration with Defendant’s reply brief. (Doc. No. 18-
26 1.) In it, Mr. Jones defends the completeness of his search and the sufficiency of
27 Defendant’s records. But he once again does not state that no attorney phone numbers were recorded. Instead, he repeats his assertion that “no calls involving an attorney and
28 either Mr. Romero or Mr. Tiscareno were recorded.” (Id. at 3 (emphasis added).)

5

16cv1283 JM (MDD)

1 the jurisdictional issue and substantive issues are so intertwined that the question of

2 jurisdiction is dependent on the resolution of factual issues going to the merits, the

3 jurisdictional determination should await a determination of the relevant facts on either a

4 motion going to the merits or at trial.” Augustine v. United States, 704 F.2d 1074, 1077

5 (9th Cir. 1983). Indeed, a district court risks error by ignoring this direction. See Safe

6 Air for Everyone, 373 F.3d at 1040. In Safe Air for Everyone, the Ninth Circuit held that

7 a district court erred by dismissing a case pursuant to Rule 12(b)(1) where “the

8 jurisdictional issue and substantive issues in th[e] case [were] so intertwined that the

9 question of jurisdiction [was] dependent on the resolution of factual issues going to the

10 merits.” Id. Because of this error, the court reviewed the district court’s order “as a grant

11 of summary judgment on the merits” rather than a dismissal for lack of subject matter

12 jurisdiction. Id.

13

Here, the jurisdictional and substantive issues are significantly intertwined. The

14 salient question in evaluating Plaintiffs’ standing is whether Defendant recorded

15 Plaintiffs’ calls. Likewise, the salient question in determining which party prevails on the

16 merits will also be whether Defendant recorded Plaintiffs’ calls. Thus, if the court were

17 to decide this question now, it would for all intents and purposes be granting summary

18 judgment in favor of Defendant. See id. The court is not willing to take that step at this

19 time.

20

b. Plaintiffs’ Allegations Are Sufficient Under Spokeo

21

Defendant also argues that, even if Plaintiffs’ calls were recorded, Plaintiffs lack

22 standing to sue based on a bare statutory violation of CIPA.4 Defendant points to

23 Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016), in

24 support of its argument. In Spokeo, the Supreme Court discussed the “concrete” and

25

26 4 Defendant’s additional argument that Plaintiff Elliott lacks standing because the
27 attorney-client privilege exists only for the benefit of the client misses the point. Plaintiff Elliott is not seeking to protect his rights under the attorney-client privilege. Rather, he is
28 seeking to defend his rights under CIPA.

6

16cv1283 JM (MDD)

1 “particularized” components of the injury-in-fact requirement. For an injury to be

2 concrete, it “must be ‘de facto’; that is, it must actually exist.” Id. at 1548. “For an

3 injury to be particularized, it must affect the plaintiff in a personal and individual way.”

4 Id. (internal quotations omitted). The Supreme Court noted that a plaintiff does not

5 “automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person

6 a statutory right and purports to authorize that person to sue to vindicate that right.” Id. at

7 1549. Instead, “Article III standing requires a concrete injury even in the context of a

8 statutory violation.” Id. The Supreme Court acknowledged, however, that “the violation

9 of a procedural right granted by statute can be sufficient in some circumstances to

10 constitute injury in fact.” Id. Spokeo thus distinguishes between “bare procedural

11 violation[s]” and violations that “cause harm or present any material risk of harm.” Id. at

12 1549–50.

13

The statute at issue in this case, CIPA, prohibits unauthorized interceptions of

14 communications in order “to protect the right of privacy.” Cal. Penal Code

15 § 630. “[I]nvasion of privacy . . . [is] a serious threat to the free exercise of personal

16 liberties and cannot be tolerated in a free and civilized society.” Id.; see also Flanagan v.

17 Flanagan, 27 Cal. 4th 766, 775 (2002) (stating that the “legislative purpose of the Privacy

18 Act” is to “giv[e] greater protection to privacy interests”). In keeping with this priority,

19 CIPA section 636 makes it a felony to, “without permission from all parties to the

20 conversation, eavesdrop[] on or record[], by means of an electronic device, a

21 conversation, or any portion thereof, between a person who is in the physical custody of a

22 law enforcement officer or other public officer, or who is on the property of a law

23 enforcement agency or other public agency, and that person’s attorney . . . .” Notably,

24 unlike section 632, section 636 does not require that the conversation be confidential and

25 that the parties intend it as such. Compare Cal. Penal Code § 632 with id. § 636. Section

26 637.2 provides a private right of action to any person injured by a violation of section

27

28

7 16cv1283 JM (MDD)

1 636.5

2

A violation of CIPA involves much greater concrete and particularized harm than a

3 technical violation of the Fair Credit Reporting Act (“FRCA”), the statute at issue in

4 Spokeo. While “[a] violation of one of the FCRA’s procedural requirements may result

5 in no harm,” such as reporting of “an incorrect zip code,” Spokeo, 136 S. Ct. at 1549, a

6 violation of CIPA is a violation of privacy rights.

7

Judge Koh of the Northern District of California recently engaged in a lengthy and

8 thoughtful analysis of whether CIPA violations, without more, constitute injury in fact.

9 In Matera v. Google Inc., No. 15-CV-04062-LHK, 2016 WL 5339806 (N.D. Cal. Sept.

10 23, 2016), Judge Koh first recognized that Spokeo teaches that “two factors may be

11 relevant to whether the violation of statutory rights constitutes injury in fact: (1) whether

12 the statutory violation bears a ‘close relationship to a harm that has traditionally been

13 regarded as providing a basis for a lawsuit in English or American courts,’ and (2)

14 congressional judgment in establishing the statutory right, including whether the statutory

15 right is substantive or procedural.” Id. at *9 (quoting Spokeo, 136 S. Ct. at 1549). As to

16 the first factor, Judge Koh noted that invasion of privacy, which CIPA exists to prevent,

17 “has been recognized as a common law tort for over a century.” Id. at *10. As to the

18 second factor, Judge Koh found that CIPA created “enforceable, substantive legal rights

19 . . . .” Id. at *13. Based on her analysis, Judge Koh concluded “that the judgment of . . .

20 the California Legislature indicate[s] that the alleged violations of Plaintiff’s statutory

21 rights under . . . CIPA constitute concrete injury in fact. This conclusion is supported by

22 the historical practice of courts recognizing that the unauthorized interception of

23 communication constitutes cognizable injury.” Id. at *15.6

24

25 5 A September 30, 2016, amendment to section 637.2 provides that an injured person may
26 recover $5,000 per statutory violation.
27 6 Judge Koh also rejected the claim that state statutes like CIPA cannot confer Article III standing, noting that Spokeo “said nothing about the ability of state legislatures to create
28 rights sufficient to confer Article III standing,” and “the Ninth Circuit has held that ‘state

8

16cv1283 JM (MDD)

1

The court agrees with Judge Koh’s well-reasoned order. Rather than being a “bare

2 procedural violation,” a CIPA violation is “the violation of a procedural right granted by

3 statute . . . sufficient . . . to constitute injury in fact.” See Spokeo, 136 S. Ct. at 1549.

4 The California Court of Appeal appears to agree, stating that section 637.2 of CIPA “is

5 fairly read as establishing that no violation of the Privacy Act is to go unpunished. Any

6 invasion of privacy involves an affront to human dignity which the Legislature could

7 conclude is worth at least $[5,000]. The right to recover this statutory minimum accrued

8 at the moment the Privacy Act was violated.” Friddle v. Epstein, 16 Cal. App. 4th 1649,

9 1660–61 (1993), opinion modified on denial of reh’g (July 7, 1993); see also Bona Fide

10 Conglomerate, Inc. v. SourceAmerica, No. 314CV00751GPCDHB, 2016 WL 3543699,

11 at *8 (S.D. Cal. June 29, 2016) (holding that allegation of CIPA violation is sufficient to

12 confer standing). The alleged harm to all Plaintiffs—an invasion of their privacy rights—

13 coupled with the additional harm to Plaintiffs Romero and Tiscareno of forfeiting the

14 protections of the attorney-client privilege, constitute a concrete and particularized injury

15 that is actual and imminent. Accordingly, the court finds that Plaintiffs have sufficiently

16 alleged an injury in fact to support standing and subject matter jurisdiction, and the court

17 denies Defendant’s motion to dismiss the FAC on those grounds.7

18

B. Administrative Remedies

19

Defendant next argues that Plaintiffs failed to exhaust available administrative

20 remedies, and thus, under California law, are barred from seeking judicial relief. Though

21

22
23 law can create interests that support standing in federal courts’ and ‘state statutes constitute state law that can create such interests.’” Id. at *14 (quoting Cantrell v. City of
24 Long Beach, 241 F.3d 674, 684 (9th Cir. 2001)). 25 7 The court rejects Defendant’s argument that Plaintiffs lack standing to seek an
injunction. While Plaintiffs Romero and Tiscareno may no longer be incarcerated, 26 Plaintiff Elliott, as a criminal defense attorney, may require Defendant’s services to 27 communicate with other clients in the future. As standing is satisfied if at least one
named plaintiff meets the requirements, Bates v. United Parcel Serv., Inc., 511 F.3d 974, 28 985 (9th Cir. 2007), Plaintiffs here have standing to seek an injunction.

9

16cv1283 JM (MDD)

1 Defendant states that the “exhaustion requirements applicable to Plaintiffs’ claims are

2 straightforward,” in reality they are anything but. It is true that the California Code of

3 Regulations sets forth appeals processes for prisoner grievances, but it is far from certain

4 that those processes apply to the claims in this case, and Defendant has presented no

5 authority that persuades the court of that position.

6

That is because this case is not like the Private Attorney General Act (“PAGA”)

7 case that Defendant cites in support of its argument, nor is it like other comparable

8 statutes. PAGA expressly provides, within the statute itself, that before commencing a

9 suit, an aggrieved employee must “give written notice . . . [to] the Labor and Workforce

10 Development Agency and . . . the employer of the specific provisions of this code alleged

11 to have been violated, including the facts and theories to support the alleged violation.”

12 Cal. Lab. Code § 2699.3. The employee must then wait a specified period of time or

13 until the Labor and Workforce Development Agency gives notice that it will not

14 investigate the grievance. Id. The California Fair Employment and Housing Act

15 (“FEHA”) is a similar example. FEHA provides that persons claiming violations must

16 file an administrative complaint with the Department of Fair Employment and Housing

17 and obtain a “right to sue” letter from the Department before commencing a civil action.

18 Cal. Gov’t Code §§ 12960, 965(b).

19

Here, by contrast, CIPA expressly provides a judicial remedy with no mention of

20 any preliminary administrative requirement. Cal. Penal Code § 636. Section 637.2

21 simply states that “[a]ny person who has been injured by a violation of this chapter may

22 bring an action against the person who committed the violation . . . .” Defendant did not

23 cite, nor is the court aware of, any CIPA case that even mentions a plaintiff’s duty to first

24 exhaust administrative remedies.8 The procedures Defendant cites are “intended to

25 provide a remedy for inmates and parolees with identified grievances and to provide an

26

27 8 Even if the administrative procedures apply to the claims of Plaintiffs Romero and
28 Tiscareno, they certainly do not apply to Plaintiff Elliott.

10

16cv1283 JM (MDD)

1 administrative mechanism for review of departmental policies, decisions, actions,

2 conditions, or omissions that have a material adverse effect” upon inmates or parolees’

3 “health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1. Thus, while the

4 regulations cover identified prison grievances relating to inmates’ welfare, there is no

5 indication they also cover violations of a generally applicable California privacy statute,

6 or allegations of fraud based on misrepresentations or omissions made far outside the

7 prison walls, or violations of section 17200 premised on either of those claims.

8

Simply put, this is not a traditional prison grievance case. Compare for example,

9 the issues that have served to generate some of the foremost California cases on this

10 topic: the suitability of medical treatment while in prison, see Wright v. State, 122 Cal.

11 App. 4th 659 (2004); Parthemore v. Col, 221 Cal. App. 4th 1372 (2013), or the ability of

12 prisoners to access to their inmate records, see In re Muszalski, 52 Cal. App. 3d 500

13 (1975). Those are prison grievance issues. This is not, and for that reason, the court

14 denies Defendant’s motion to dismiss on the grounds that Plaintiffs failed to exhaust

15 administrative remedies.

16

C. Failure to State a Claim

17

Defendant moves to dismiss the remainder of the FAC under Rule 12(b)(6) for

18 failure to state a claim.

19

1. Section 17200 claim

20

Section 17200, California’s unfair competition law, “prohibits any unfair

21 competition, which means ‘any unlawful, unfair or fraudulent business act or practice.’”

22 In re Pomona Valley Med. Group, 476 F.3d 665, 674 (9th Cir. 2007) (quoting Cal. Bus.

23 & Prof. Code § 17200, et seq.). Section 17200’s coverage is “sweeping,” and its standard

24 for wrongful business conduct is “intentionally broad.” In re First Alliance Mortg. Co.,

25 471 F.3d 977, 995 (9th Cir. 2006). Each prong of section 17200 provides a separate and

26 distinct theory of liability. Lozano v. AT & T Wireless Servs., Inc., 504 F.3d 718, 731

27 (9th Cir. 2007). “Injunctions are the primary form of relief available under [section

28 17200] to protect consumers from unfair business practices, while restitution is a type of

11 16cv1283 JM (MDD)

1 ancillary relief.” Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 337 (2011).

2

To pursue either an individual or a representative claim under section 17200, a

3 plaintiff “must have suffered an injury in fact and lost money or property as a result of

4 such unfair competition.” Hall v. Time Inc., 158 Cal. App. 4th 847, 849 (2008). The

5 court has already determined that Plaintiffs have adequately alleged an injury in fact

6 based on Defendant’s CIPA violations. The question, then, is whether Plaintiffs have

7 also properly alleged that they lost money or property as a result. In Kwikset, 51 Cal. 4th

8 310 (2011), the California Supreme Court recently clarified what constitutes “lost money

9 or property” for purposes of section 17200. The court in Kwikset held that a “consumer

10 who relies on a product label and challenges a misrepresentation contained therein can

11 satisfy the standing requirement of [section 17200] by alleging, as plaintiffs have here,

12 that he or she would not have bought the product but for the misrepresentation. That

13 assertion is sufficient to allege causation—the purchase would not have been made but

14 for the misrepresentation. It is also sufficient to allege economic injury.” Id. at 330.

15

While some courts prior to Kwikset held that there was no loss if a consumer got

16 what he or she paid for, see Hall, 158 Cal. App. 4th at 855, which is the thrust of

17 Defendant’s argument here, Kwikset explicitly rejected that “benefit of the bargain”

18 defense, see 51 Cal. 4th at 332; Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1107 (9th Cir.

19 2013). As the Ninth Circuit stated in Hinojos, “the benefit of the bargain defense is

20 permissible only if the misrepresentation that the consumer alleges was not material. A

21 representation is material, however, if a reasonable consumer would attach importance to

22 it or if the maker of the representation knows or has reason to know that its recipient

23 regards or is likely to regard the matter as important in determining his choice of action.”

24 718 F.3d at 1107 (internal quotations omitted). “Furthermore, the materiality of a

25 misrepresentation is typically an issue of fact, and therefore should not be decided at the

26 motion to dismiss stage.” Id. n.7.

27

Here, Plaintiffs allege Defendant violated all three prongs of section 17200. (Doc.

28 No. 8 ¶¶ 121–23.) And Plaintiffs state that they “would not have paid for and used the

12 16cv1283 JM (MDD)

1 Securus telephone system for private and privileged phone conversations as they did, or 2 would not have paid as much for them, had they known” that Defendant was allegedly 3 fraudulently concealing facts (as discussed below) and recording their calls in violation of 4 CIPA. (Doc. No. 8 ¶ 126.) Following Kwikset, that is sufficient to state a claim for relief 5 under the unlawful and fraudulent9 prongs of section 17200. Cf. Stoba v. 6 Saveology.com, LLC, No. 13-CV-2925-BAS NLS, 2014 WL 3573404, at *5 (S.D. Cal. 7 July 18, 2014) (dismissing section 17200 claim based on CIPA violation because 8 plaintiffs “fail[ed] to direct this Court’s attention to any allegations in the complaint that 9 provide any facts plausibly demonstrating lost money or property”); Archer v. United 10 Rentals, Inc., 195 Cal. App. 4th 807, 816 (2011), as modified on denial of reh’g (June 13, 11 2011) (dismissing section 17200 claim where plaintiffs claimed “the unlawful collection 12 and recordation of their personal identification information, [which was] an invasion of 13 their right of privacy,” but “failed to demonstrate how such privacy violation translate[d] 14 into a loss of money or property”); Folgelstrom v. Lamps Plus, Inc., 195 Cal. App. 4th 15 986, 993 (2011), as modified (June 7, 2011) (stating that in the typical section 17200 16 case, a plaintiff alleges “that he made a purchase or otherwise parted with money on 17 account of [the defendant’s] allegedly unfair practices”). Moreover, because section 18 17200’s standing requirements do not apply to absent class members at this stage, In re 19 Tobacco II Cases, 46 Cal. 4th 298, 324 (2009), nothing more is required right now.10 20 21
9 “Generally, to be actionable under the UCL, a concealed fact must be material in the 22 sense that it is likely to deceive a reasonable consumer. Unlike a common law fraud 23 claim, a UCL fraud claim requires no proof that the plaintiff was actually deceived.
Instead, the plaintiff must produce evidence showing a likelihood of confounding an 24 appreciable number of reasonably prudent purchasers exercising ordinary care.” 25 Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1025–26 (9th Cir. 2008); see also
Daugherty v. Am. Honda Motor Co., 144 Cal. App. 4th 824, 838 (2006), as modified 26 (Nov. 8, 2006) (“In order to be deceived, members of the public must have had an 27 expectation or an assumption about the matter in question.”).
10 It of course remains to be seen whether Plaintiffs can prove that they are entitled to 28 “disgorgement and restitution of all monies acquired” by Defendant, (Doc. No. 8 ¶ 130),
13
16cv1283 JM (MDD)

1

2. Fraud Claims

2

The FAC alleges fraud in the form of both fraudulent concealment/intentional

3 omission of material facts, (Doc. No. 8 ¶¶ 131–139), and intentional misrepresentation,

4 (id. ¶¶ 140–150). The elements of fraud in California are: “(1) a misrepresentation (false

5 representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter);

6 (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting

7 damage.” Robinson Helicopter Co. v. Dana Corp., 34 Cal. 4th 979, 990 (2004). For an

8 omission to be actionable, “the omission must be contrary to a representation actually

9 made by the defendant, or an omission of a fact the defendant was obliged to

10 disclose.” Daugherty v. Am. Honda Motor Co., 144 Cal. App. 4th 824, 835 (2006). A

11 defendant may be obliged to disclose a fact “when the defendant has exclusive

12 knowledge of material facts not known or reasonably accessible to the plaintiff” or “when

13 the defendant actively conceals a material fact from the plaintiff.” Collins v. eMachines,

14 Inc., 134 Cal. Rptr. 3d 588, 593 (Cal. App. 3d Dist. 2011), as modified (Dec. 28, 2011).

15

Defendant contends Plaintiffs have failed to meet Federal Rule of Civil Procedure

16 9(b)’s heightened pleading requirement, which applies to state causes of action made in

17 federal court. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003).

18 Rule 9(b) provides that “[i]n alleging fraud or mistake, a party must state with

19 particularity the circumstances constituting fraud or mistake,” although “[m]alice, intent,

20 knowledge, and other conditions of a person’s mind may be alleged generally.” In cases

21 involving misstatements, “[a]verments of fraud must be accompanied by ‘the who, what,

22 when, where, and how’ of the misconduct charged.” Vess, 317 F.3d at 1106 (quoting

23 Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)). “A plaintiff must set forth more

24 than the neutral facts necessary to identify the transaction. The plaintiff must set forth

25

26 by proving that they paid more than market rate for telephone calls or would not have
27 used Defendant’s services had they been aware of Defendant’s conduct. But for now, given that the court must accept as true Plaintiffs’ allegations to that effect, Plaintiffs
28 have adequately pled a section 17200 claim.

14

16cv1283 JM (MDD)

1 what is false or misleading about a statement, and why it is false.” Id. (internal

2 quotations and alterations omitted). “Where a fraudulent omission is at issue, the

3 requirements of Rule 9(b) are relaxed, but not eliminated.” UMG Recordings, Inc. v.

4 Glob. Eagle Entm't, Inc., 117 F. Supp. 3d 1092, 1107 (C.D. Cal. 2015); see also Huntair,

5 Inc. v. Gladstone, 774 F. Supp. 2d 1035, 1044 (N.D. Cal. 2011) (stating that the Rule 9(b)

6 standard is somewhat relaxed when a claim rests on an alleged fraudulent omission

7 because “a plaintiff cannot plead either the specific time of [an] omission or the place, as

8 he is not alleging an act, but a failure to act”). Either way, “Rule 9(b) demands that . . .

9 the circumstances constituting the alleged fraud be specific enough to “give [Defendant]

10 notice of the particular misconduct so that [it] can defend against the charge and not just

11 deny that [it has] done anything wrong.” Vess, 317 F.3d at 1106 (internal quotations and

12 alterations omitted).

13

The court finds that Plaintiffs have met Rule 9(b)’s requirement as to their

14 omissions claim, but failed to meet Rule 9(b)’s requirements as to their false

15 representations claim. Regarding the omissions, Plaintiffs allege that sometime between

16 April 14, 2014, and August 21, 2014 (when), Defendant employee Christopher Hudson

17 (who) knew that Defendant was improperly recording attorney-client calls (what), in San

18 Diego (where), but failed to disclose this information to the victims or the general public

19 (how). Because Defendant had “exclusive knowledge of material facts not known or

20 reasonably accessible to the plaintiff,” Collins, 202 Cal. App. 4th at 255, Defendant owed

21 a duty to disclose these facts. This, along with Plaintiffs’ claims that they would not have

22 used Defendant’s services if the omitted facts had been disclosed, see Mirkin v.

23 Wasserman, 5 Cal. 4th 1082, 1093 (1993), satisfies Rule 9(b).

24

Regarding the false representations, however, while Plaintiffs allege that

25 Defendant pledged to follow state laws regarding confidentiality, they do not allege who

26 at Securus made that statement, when he made it, or that he knew Securus was in fact not

27 following California law. Similarly, while Plaintiffs allege Defendant issued a press

28 release stating that Securus “found absolutely no evidence of attorney-client calls that

15 16cv1283 JM (MDD)

1 were recorded without the knowledge and consent of those parties,” they fail to allege

2 who made that statement and when.11 Finally, though Plaintiffs allege that Defendant

3 knew it was recording the calls of individuals who added their telephone numbers to a

4 “Do Not Record” list with the San Diego Sheriff’s Office, they do not plead that

5 Defendant made any active false statements in connection with that list.12

6

Thus, for the foregoing reasons, the court dismisses, with leave to amend,

7 Plaintiffs’ Fourth Cause of Action (Fraud and Intentional Misrepresentation).

8

3. Negligence Claims

9

Defendant does not directly address Plaintiffs’ negligence claim.13 (See generally

10 Doc. Nos. 11, 18.) Thus, the court presumes that in moving to dismiss this claim,

11 Defendant relies on its previously discussed argument that Plaintiffs have not suffered

12 damages and therefore lack an element of negligence under California law. See Brown v.

13 Ransweiler, 171 Cal. App. 4th 516, 534 (2009) (stating elements of negligence are (1) a

14 legal duty to use due care, (2) breach of that duty, (3) the breach was the proximate or

15 legal cause of the resulting injury, and (4) actual loss or damage resulting from the breach

16 of the duty of care). Because the court finds that Plaintiffs have satisfactorily alleged

17 damages in this case, the court denies Defendant’s motion to dismiss this claim.

18

4. Unjust Enrichment Claims

19

As Defendant correctly pointed out, there is not a standalone cause of action for

20 unjust enrichment in California. Durell v. Sharp Healthcare, 183 Cal. App. 4th 1350,

21

22 11 The court notes that Plaintiffs attached documents to their opposition that may address
23 these insufficiencies. But Plaintiffs must satisfy Rule 9(b) in the pleading, not through exhibits to their arguments.
24 12 Plaintiffs also allege that a brochure for Defendant’s “Video Visitation” service states
25 that those sessions will not be recorded or monitored, but that service is not at issue in this case.
26 13 Plaintiffs’ negligence claim is not subject to Rule 9(b)’s heightened pleading standard.
27 Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (“Where fraud is not an essential element of a claim, only those allegations of a complaint which aver fraud are
28 subject to Rule 9(b)’s heightened pleading standard.”).

16

16cv1283 JM (MDD)

1 1370 (2010). But unjust enrichment is synonymous with restitution, and when a plaintiff

2 alleges unjust enrichment, a court may “construe the cause of action as a quasi-contract

3 claim seeking restitution.” Rutherford Holdings, LLC v. Plaza Del Rey, 223 Cal. App.

4 4th 221, 231 (2014). There are “several potential bases for a cause of action seeking

5 restitution.” Durell, 183 Cal. App. 4th at 1370. For example, “restitution may be

6 awarded where the defendant obtained a benefit from the plaintiff by fraud, duress,

7 conversion, or similar conduct.” Id.

8

Plaintiffs are free to seek restitution in the alternative to their other claims, see

9 Astiana v. Hain Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015) (citing Fed. R.

10 Civ. P. 8(d)(2)), and one basis for restitution—a benefit obtained by fraud—is at issue

11 here. Accordingly, the court denies Defendant’s motion to dismiss this claim.

12

5. Conversion Claim

13

“Conversion is the wrongful exercise of dominion over the property of another.”

14 Welco Elecs., Inc. v. Mora, 223 Cal. App. 4th 202, 208 (2014), reh’g denied (Feb. 19,

15 2014). The elements of conversion are: “(1) the plaintiff’s ownership or right to

16 possession of the property; (2) the defendant’s conversion by a wrongful act or

17 disposition of property rights; and (3) damages.” Id. “Money may be the subject of

18 conversion if the claim involves a specific, identifiable sum.” Id.

19

“California cases permitting an action for conversion of money typically involve

20 those who have misappropriated, commingled, or misapplied specific funds held for the

21 benefit of others.” PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil &

22 Shapiro, LLP, 150 Cal. App. 4th 384, 396 (2007). That is not Plaintiffs’ claim here.

23 Instead, the crux of Plaintiffs’ claim is that Defendant charged them for services they

24 otherwise would not have used, or at a minimum, overcharged them. But as the

25 California Court of Appeal has noted, there is no support for the position that an

26 overcharge, without more, gives rise to a claim for conversion. McKell v. Washington

27 Mut., Inc., 142 Cal. App. 4th 1457, 1492 (2006); see also Gutierrez v. Wells Fargo &

28 Co., 622 F. Supp. 2d 946, 956 (N.D. Cal. 2009) (same). Accordingly, the court

17 16cv1283 JM (MDD)

1 dismisses, without leave to amend, Plaintiffs’ Seventh Cause of Action (Conversion).

2 II. MOTION TO STRIKE CLASS ACTION ALLEGATIONS

3

A. Legal Standards

4

Federal Rule of Civil Procedure 12(f) states that a district court “may strike from a

5 pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous

6 matter.” “The function of a 12(f) motion to strike is to avoid the expenditure of time and

7 money that must arise from litigating spurious issues by dispensing with those issues

8 prior to trial.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010)

9 (internal quotations omitted). “‘Motions to strike are generally regarded with disfavor

10 because of the limited importance of pleading in federal practice, and because they are

11 often used as a delaying tactic.’” Varrasso v. Barksdale, No. 13-CV-1982-BAS-JLB,

12 2016 WL 1375594, at *1 (S.D. Cal. Apr. 5, 2016) (quoting Neilson v. Union Bank of

13 California, N.A., 290 F. Supp. 2d 1101, 1152 (C.D. Cal. 2003)). “The motion should not

14 be granted unless the matter to be stricken clearly could have no possible bearing on the

15 subject of the litigation. If there is any doubt the court should deny the motion.” Obesity

16 Research Inst., LLC v. Fiber Research Int’l, LLC, No. 15-CV-00595-BAS(MDD), 2016

17 WL 739795, at *3 (S.D. Cal. Feb. 25, 2016) (internal quotations and alterations omitted).

18 When deciding a Rule 12(f) motion, courts must accept the nonmoving party’s

19 allegations as true and liberally construe the pleadings in their favor. Multimedia Patent

20 Trust v. Microsoft Corp., 525 F. Supp. 2d 1200, 1211 (S.D. Cal. 2007).

21

B. Analysis

22

Class allegations are generally not tested at the pleadings stage and instead are

23 usually tested after one party has filed a motion for class certification. E.g., Thorpe v.

24 Abbott Labs., Inc., 534 F. Supp. 2d 1120, 1125 (N.D. Cal. 2008); In re Wal-Mart Stores,

25 Inc. Wage & Hour Litig., 505 F. Supp. 2d 609, 615 (N.D. Cal. 2007). As the Supreme

26 Court has explained, however, “[s]ometimes the issues are plain enough from the

27 pleadings to determine whether the interests of the absent parties are fairly encompassed

28 within the named plaintiff’s claim.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160

18 16cv1283 JM (MDD)

1 (1982). Thus, the court may grant a motion to strike class allegations if it is clear from

2 the complaint that the class claims cannot be maintained. Sanders v. Apple, Inc., 672 F.

3 Supp. 2d 978, 990–91 (N.D. Cal. 2009).

4

Defendant argues that the court should strike Plaintiffs’ class allegations because

5 the putative class contains “persons who have no conceivable basis to claim injury.” This

6 is because, according to Defendant, the subclasses include inmates and attorneys who

7 may have had non-confidential attorney-client conversations listened to, eavesdropped

8 on, or recorded by Defendant, as well as attorneys who cannot assert the attorney-client

9 privilege for themselves.

10

These arguments miss the mark. First, Defendant ignores the plain language of

11 section 636, which does not require that conversations be confidential. See Cal. Penal

12 Code § 636. Thus, Defendant’s focus on the individualized inquiry required to determine

13 whether calls were confidential is completely misguided. The cases Defendant cites in

14 support of its argument dealt with claims under section 632, which, unlike section 636, is

15 only actionable for confidential calls. See Torres v. Nutrisystem, Inc., 289 F.R.D. 587

16 (C.D. Cal. 2013); NEI Contracting & Eng’g, Inc. v. Hanson Aggregates Pac. Sw., Inc.,

17 No. 12-CV-01685-BAS JLB, 2015 WL 1309938, at *1 (S.D. Cal. Mar. 24, 2015), on

18 reconsideration, sub nom. NEI Contracting & Eng’g, Inc. v. Hanson Aggregates, Inc.,

19 No. 12-CV-01685-BAS JLB, 2015 WL 4923510 (S.D. Cal. Aug. 18, 2015). Moreover,

20 those decisions came about at the class certification stage rather than the pleading stage,

21 further undermining their usefulness to Defendant. Second, as discussed in footnote 4,

22 the attorney class is alleging violations of section 636—not the attorney client-

23 privilege—and thus the attorney subclass does not lack standing for that reason.

24

All told, Defendant’s motion to strike falls far short of the high threshold for

25 disposing of class action allegations under Rule 12(f). At this stage, the court simply

26 cannot be certain, from the face of the complaint, that the class claims cannot be

27 maintained. Thus, Defendant’s motion is premature, and a later motion for class

28 certification is the more appropriate vehicle for Defendant’s arguments. Given that

19 16cv1283 JM (MDD)

1 “[a]ny doubt concerning the import of the allegations to be stricken weighs in favor of

2 denying the motion to strike,” In re Wal-Mart, 505 F. Supp. 2d at 614, the court denies

3 Defendant’s motion to strike.

4

CONCLUSION

5

For the foregoing reasons, the court dismisses, with leave to amend, Plaintiffs’

6 Fourth Cause of Action (Fraud and Intentional Misrepresentation). The court dismisses,

7 without leave to amend, Plaintiffs’ Seventh Cause of Action (Conversion). The court

8 denies the remainder of Defendant’s motion to dismiss, and the court denies Defendant’s

9 motion to strike. If Plaintiffs wish to file a second amended complaint to address their

10 claim for intentional misrepresentation, they must do so within fourteen days of the entry

11 of this order.

12 IT IS SO ORDERED.

13 DATED: October 24, 2016 14 15

JEFFREY T. MILLER United States District Judge

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1

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3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 JUAN ROMERO, FRANK TISCARENO,

12

and KENNETH ELLIOTT, on behalf of themselves, and all others similarly

13 situated,

14

Plaintiff,

15 v.

Case No.: 16cv1283 JM (MDD)
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS SECOND AMENDED COMPLAINT

16 SECURUS TECHNOLOGIES, INC.,

17

Defendant.

18

19

Defendant Securus Technologies moves to dismiss the fourth cause of action in the

20 second amended class action complaint (“SAC”) of Plaintiffs Juan Romero, Frank

21 Tiscareno, and Kenneth Elliott (collectively, “Plaintiffs”). (Doc. No. 23.) For the 22 following reasons, the court grants Defendant’s motion in part and denies it in part.1

23

24

25 1 In addition, the court grants Plaintiffs’ request for judicial notice insomuch as Plaintiffs
26 ask the court to recognize the existence of the documents contained in Exhibits A–C to
27 their opposition to Defendant’s motion. But as matters of public record, the court takes notice only of the existence of those documents, and does not credit the truth of their
28 contents. See Lee v. City of Los Angeles, 250 F.3d 668, 689–90 (9th Cir. 2001).

1

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1

BACKGROUND

2

Plaintiffs are two former inmates and a criminal defense attorney, all of whom

3 used Defendant’s telephone systems to make calls to and from certain correctional

4 facilities in California. Plaintiffs filed a first amended complaint against Defendant on

5 July 26, 2016, alleging seven causes of action: (1) violations of the California Invasion of

6 Privacy Act (“CIPA”), Cal. Penal Code § 636, (2) violations of California Business &

7 Professions Code section 17200 (“section 17200”), (3) fraudulent concealment/omission,

8 (4) fraudulent misrepresentation, (5) negligence, (6) unjust enrichment, and

9 (7) conversion. (Doc. No. 8.) Defendant moved to dismiss the first amended complaint,

10 and on October 24, 2016, the court granted that motion in part and denied it in part.

11 (Doc. No. 21.) The court dismissed Plaintiffs’ conversion claim without leave to amend

12 and dismissed Plaintiffs’ fourth cause of action for fraudulent misrepresentation with

13 leave to amend. The court denied the remainder of Defendant’s motion. Plaintiffs timely

14 amended the fourth cause of action, filing the SAC on November 7, 2016. (Doc. No. 22.)

15 In the motion now before the court, Defendant once again moves to dismiss Plaintiffs’

16 fourth cause of action for fraudulent misrepresentation.2

17

18 2 In addition, Defendant once again moves to dismiss the SAC in its entirety, spending a
19 significant portion of its papers challenging the court’s previous determination that Plaintiffs alleged an injury in fact sufficient to confer standing. Among other complaints,
20 Defendant objects to the court “rel[ying] on Matera v. Google Inc., No. 15-CV-04062-
21 LHK, 2016 U.S. Dist. LEXIS 130778 (N.D. Cal. Sep. 23, 2016), although that decision was so recent that the parties had not addressed it in their briefs.” Despite Defendant’s
22 contention, however, the court did not “rely” on Matera. Rather, after its own evaluation,
23 the court “agree[d] with Judge Koh’s well-reasoned order” in Matera that reached the same conclusion. The court is not persuaded by Defendant’s further arguments on this
24 point—whether new or rehashed—and declines to reconsider that decision. Furthermore,
25 Defendant ignores the court’s finding, in the context of California Business & Professions Code section 17200, that Plaintiffs adequately alleged economic injury. As
26 section 17200’s standing requirement is “substantially narrower than federal standing,”
27 Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 324 (2011), that finding provides an alternate basis for standing completely independent of Matera (or Spokeo).
28

2 16cv1283 JM (MDD)

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1

DISCUSSION

2

Defendant argues that “[d]espite Plaintiffs’ addition of several paragraphs to the

3 Second Amended Complaint, their fraud claim still fails to meet the heightened pleading

4 requirements of Rule 9(b).”

5

A. Legal Standards

6

A Rule 12(b)(6) motion to dismiss for failure to state a claim challenges the legal

7 sufficiency of the pleadings. Generally, to overcome such a motion, the complaint must

8 contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

9 Corp. v. Twombly, 550 U.S. 544, 570 (2007). Federal Rule of Civil Procedure 9(b)

10 provides, however, that “[i]n alleging fraud or mistake, a party must state with

11 particularity the circumstances constituting fraud or mistake,” although “[m]alice, intent,

12 knowledge, and other conditions of a person’s mind may be alleged generally.” “Rule

13 9(b) demands that, when averments of fraud are made, the circumstances constituting the

14 alleged fraud be specific enough to give defendants notice of the particular misconduct so

15 that they can defend against the charge and not just deny that they have done anything

16 wrong.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal

17 ellipsis omitted). To satisfy Rule 9(b), “[a]verments of fraud must be accompanied by

18 ‘the who, what, when, where, and how’ of the misconduct charged.” Id. (quoting Cooper

19 v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)). In addition, the plaintiff “must set forth

20 what is false or misleading about a statement, and why it is false.” Id.

21

B. Analysis

22

In their fourth cause of action, Plaintiffs offer three generally separate

23 representations which they contend state a claim for fraud under California law, the

24 elements of which are: “(1) a misrepresentation (false representation, concealment, or

25 nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce

26 reliance; (4) justifiable reliance; and (5) resulting damage.” Robinson Helicopter Co. v.

27 Dana Corp., 34 Cal. 4th 979, 990 (2004).

28

First, Plaintiffs allege that on or about May 29, 2012, Defendant’s CEO Richard A.

3 16cv1283 JM (MDD)

Case 3:16-cv-01283-JM-MDD Document 29 Filed 01/26/17 PageID.1165 Page 4 of 6

1 Smith issued and published a “Customer Integrity Pledge” to Defendant’s “Customers —

2 Inmates, Friends, Family, and the Corrections Community,” which was intended to reach

3 Plaintiffs and those similarly situated.3 (Doc. No. 22 ¶¶ 145.) In the portion of that

4 pledge relevant to this case, Smith assured Defendant’s customers that Defendant would

5 follow all state laws in the conduct of its business. (Id.) Plaintiffs allege that this

6 statement was false when made, (id. ¶ 161), and Defendant knew as much, (id. ¶ 162).

7

This allegation provides the who (Smith), what (a statement that Defendant follows

8 California law), when (May 29, 2012), where (Defendant’s website), and how (Defendant

9 actually does not follow California law) of the misconduct charged. See Vess, 317 F.3d

10 at 1106. Further, Plaintiffs’ allegations that Defendant “knew that its representations and

11 suggestions were false and/or misleading when made,” (Doc. No. 22 ¶ 162), and

12 “intentionally and knowingly misrepresented” itself, (id. ¶ 163), with “the intent to

13 induce” Plaintiffs to purchase and use the product, (id. ¶ 164), is enough to “generally”

14 aver “intent, knowledge, and other conditions of a person’s mind” in accordance with

15 Rule 9(b). That is particularly true when, as here, “plaintiffs cannot be expected to have

16 personal knowledge of the relevant facts” regarding what Defendant knew and when it

17 knew it. See Sanford v. MemberWorks, Inc., 625 F.3d 550, 558 (9th Cir. 2010).

18

Thus, based on the foregoing, as well as Plaintiffs’ assertion that they acted “in

19 justifiable reliance” on Smith’s statement, (id. ¶¶ 165–66), the court finds that Plaintiffs

20 have sufficiently pled fraud under Rule 9(b) and California law with respect to the

21 May 29, 2012, Customer Integrity Pledge.

22

Second, Plaintiffs point to Defendant’s November 13, 2015, press release that

23 stated, among other things, that Defendant had “seen no evidence to date of any attorney-

24 client privileged communications that were recorded in error” and that it “does not sell

25

26
27 3 California Civil Code section 1711 provides that anyone “who practices a deceit with intent to defraud the public, or a particular class of persons, is deemed to have intended to
28 defraud every individual in that class, who is actually misled by the deceit.”

4

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1 call recordings or information to our law enforcement or correctional customers or

2 anyone else.” (Id. ¶ 151.) Again, Plaintiffs allege that this statement was false when

3 made, (id. ¶ 161), and Defendant knew as much, (id. ¶ 162).

4

This statement also provides the what (a statement that Defendant had seen no

5 evidence of improper recordings and does not sell recordings or information), when

6 (November 13, 2015), where (Defendant’s website), and how (Defendant actually did

7 have evidence of improper recordings and did sell recordings or information) of the

8 misconduct charged. See Vess, 317 F.3d at 1106. The only apparent question is whether

9 the statement satisfies the “who.”

10

Though the press release was not signed, it was posted on Defendant’s website,

11 written in Defendant’s voice, and offered assurances on Defendant’s behalf. Therefore,

12 whether the CEO, head of cybersecurity, another executive, or some combination of

13 officers was responsible for the statement, the fact that it was not signed is not a fatal

14 flaw. “In cases of corporate fraud where the false or misleading information is conveyed

15 in . . . press releases, . . . it is reasonable to presume that these are the collective actions of

16 the officers.” Blake v. Dierdorff, 856 F.2d 1365, 1369 (9th Cir. 1988) (internal

17 quotations and alterations omitted). Consequently, even without a name attached to the

18 press release, Plaintiffs have alleged the “circumstances constituting the alleged fraud” in

19 a manner “specific enough to give [D]efendant[] notice of the particular misconduct so

20 that [it] can defend against the charge.” See Vess, 317 F.3d at 1106. And as Plaintiffs

21 make the same claims regarding knowledge, intent, and reliance as discussed above—

22 buttressed by 2014 emails purporting to alert Defendant to the allegedly improper

23 recordings, (Doc. No. 22 ¶¶ 49–62)—the court finds that Plaintiffs have sufficiently pled

24 fraud under Rule 9(b) and California law based on the November 13, 2015, press release,

25 as well.4

26

27 4 This is despite Defendant’s argument that the press release came “some twenty (20)
28 months after the allegedly unlawful conduct ended, thus providing no basis for Plaintiffs’

5

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1

Third, Plaintiffs allege that Defendant made statements to employees of the San

2 Diego County Sheriff’s Office (“the Sheriff”), including the Sheriff’s lawyer, “knowing

3 those false statements would be repeated to Plaintiffs and the proposed Class Members.”

4 (Doc No. 22 ¶¶ 147–48.) Although Plaintiffs allege that various Sheriff employees stated

5 that attorney-client calls would not be recorded if an attorney’s telephone number was on

6 a “Do Not Record” list, those statements are only actionable against Defendant if

7 Defendant made a fraudulent misrepresentation to the Sheriff and it intended, or had

8 reason to expect, that the Sheriff would repeat that representation to Plaintiffs. See

9 Geernaert v. Mitchell, 31 Cal. App. 4th 601, 605–06 (1995).

10

Plaintiffs do not point to any such statement. Instead, Plaintiffs allege in general

11 fashion that Defendant conveyed this information through its service contracts with the

12 Sheriff, (Doc. No. 22 ¶ 158), or an unspecified “promotion and advertising campaign,”

13 (id. ¶ 149). That undefined accusation is not sufficient to support a fraud allegation, and

14 accordingly, the court finds that with regard to any alleged misrepresentations made to

15 the Sheriff, Plaintiffs have not met Rule 9(b)’s requirements.

16

CONCLUSION

17

For the foregoing reasons, the court denies Defendant’s motion as to the May 29,

18 2012, “Customer Integrity Pledge” and November 13, 2015, press release, and grants

19 Defendant’s motion as to any information conveyed to the Sheriff. If Plaintiff can satisfy

20 Rule 9(b) and California law in alleging specific misrepresentations that Defendant made

21 to the Sheriff, it may file an amended complaint within fourteen days of this order.

22

IT IS SO ORDERED.

23 DATED: January 26, 2017 24 25

JEFFREY T. MILLER United States District Judge

26
27 reliance.” (Doc. No. 23 at 3.) At present, the only basis for believing when the allegedly unlawful conduct ended is Defendant’s own assurance on that point. Obviously the court
28 cannot discredit Plaintiffs’ claim based on that representation alone.

6

16cv1283 JM (MDD)

 
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1 LAW OFFICE OF ROBERT L. TEEL ROBERT L. TEEL (SBN 127081)
2 lawoffice@rlteel.com
3 207 Anthes Ave., Suite 201 Langley, Washington 98260
4 Telephone: (866) 833-5529
5 Facsimile: (855) 609-6911

6 LAW OFFICES OF RONALD A. MARRON, APLC

RONALD A. MARRON (SBN 175650)

7 ron@consumersadvocates.com

8

ALEXIS WOOD (SBN 270200) alexis@consumersadvocates.com

9 KAS GALLUCCI (SBN 288709)

kas@consumersadvocates.com 10 WILLIAM B. RICHARDS, JR. (SBN 298552)

11 bill@consumersadvocates.com
651 Arroyo Drive 12 San Diego, California 92103
13 Telephone: (619) 696-9006 Facsimile: (619) 564-6665
14 Attorneys for Plaintiff and the Proposed Class
15

16

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA 17

18 JUAN ROMERO, FRANK TISCARENO, and KENNETH
19 ELLIOTT, on behalf of themselves, and
20 all others similarly situated,

21

Plaintiffs,

Case No.: 16-cv-1283-JM-MDD
CLASS ACTION
THIRD AMENDED COMPLAINT FOR:

22

v.

23 SECURUS TECHNOLOGIES, INC,
24 Defendant.
25

26

27

(1) INVASION OF PRIVACY, CAL. PENAL CODE § 636; (2) UNFAIR COMPETITION, CAL. BUS. & PROF. CODE §§ 17200, et seq.; (3) CONCEALMENT; (4) FRAUD; (5) NEGLIGENCE; AND (6) UNJUST ENRICHMENT

28

DEMAND FOR JURY TRIAL

Romero et al v. Securus Technologies, Inc. No. 16-cv-1283 THIRD AMENDED COMPLAINT

Case 3:16-cv-01283-JM-MDD Document 30 Filed 02/08/17 PageID.1169 Page 2 of 52

1

INTRODUCTION

2

1.

Plaintiffs Juan Romero (“Romero”), Frank Tiscareno (“Tiscareno”),

3 and Kenneth Elliott (“Elliott”), individually referred to herein as a “Plaintiff” and

4 collectively as the “Plaintiffs,” individually and on behalf of all other persons

5 similarly situated, by their undersigned attorneys, for their complaint against

6 defendant, file this lawsuit to stop Securus Technologies, Inc. (“Securus” or

7 “Defendant”) from, and obtain damages and restitution from Securus for, illegally

8 monitoring, recording, maintaining, storing, and disclosing private phone calls by

9 detainees to or from their attorneys without either party’s permission and without

10 warning, and allege the following based upon personal knowledge as to themselves

11 and their own acts, and information and belief as to all other matters, based upon,

12 inter alia, the investigation conducted by and through their attorneys, which

13 includes, without limitation, a review of Defendant’s public documents,

14 announcements, and wire and press releases published by and regarding Securus,

15 and information readily obtainable on the internet.

16

JURISDICTION AND VENUE

17

2.

This Court has original jurisdiction pursuant to the Class Action

18 Fairness Act, 28 U.S.C. § 1332(d) (“CAFA”), because: (a) at least one member of

19 the putative Class is a citizen of a state different from Securus; (b) the amount in

20 controversy exceeds $5,000,000, exclusive of interest and costs; (c) the proposed

21 Class consists of more than 100 Class Members; and (d) none of the exceptions

22 under the subsection apply to this action.

23

3.

This Court has supplemental jurisdiction over the California Invasion

24 of Privacy Act, Cal. Penal Code §§ 630, et seq. (“CIPA”) and other state statutory

25 and common law claims pursuant to 28 U.S.C. § 1367 (supplemental jurisdiction

26 over pendant state law claims).

27

4.

This Court has personal jurisdiction over Defendant because: (a) it is

28 registered to, and in fact does, conduct business in California; and (b) has sufficient

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1 minimum contacts in California, or otherwise intentionally avails itself of the

2 markets within California through the promotion, sale, marketing, and distribution

3 of its products and services, to render the exercise of jurisdiction by this Court proper

4 and necessary.

5

5.

Venue is proper in this District under 28 U.S.C. § 1391 because: (a)

6 Plaintiffs are residents of, and domiciled in, this District, (b) Defendant conducts

7 substantial business in this District, and (c) a substantial part of the events giving

8 rise to Plaintiffs’ claims alleged herein occurred in this District.

9

PARTIES

10

6.

Plaintiff Juan Romero is a resident of San Diego, California and the

11 county of San Diego, who was a detainee and prisoner held at one or more of San

12 Diego county’s detention facilities at various times from August 15, 2012 through

13 May 6, 2016, and a user of the Securus phone system who has used Securus’ phone

14 system to communicate legal information with his attorneys.

15

7.

Plaintiff Frank Tiscareno is a resident of Menifee, California and the

16 county of Riverside, who was a detainee and prisoner held at one or more of San

17 Diego county’s detention facilities from February 14, 2013 through February 25,

18 2013 and October 8, 2013 and September 26, 2015, and a user of the Securus phone

19 system who has used Securus’ phone system to communicate legal information with

20 his attorney(s).

21

8.

Plaintiff Kenneth Elliott is a resident of San Diego, California and the

22 county of San Diego, a licensed criminal attorney who has practiced law in San

23 Diego since 1988, and has used the Securus’ phone system to give legal advice to

24 and communicate legal information with his clients since Securus commenced

25 providing telephone services at San Diego county detention facilities.

26

9.

Defendant Securus Technologies, Inc. is a Delaware corporation with

27 its principal place of business at 14651 Dallas Parkway, Suite 600, Dallas, Texas

28 75254-8815.

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1

SUMMARY AND COMMON FACTUAL ALLEGATIONS

2 10. Plaintiffs are attorney and detainee users of the Securus phone system

3 who bring this proposed class action lawsuit on behalf of all detainees and attorneys

4 who used the Securus phone system from July 10, 2008 to present (the opt-out date,

5 inclusive) to communicate, converse, and exchange information and legal advice,

6 and whose private phone calls were unlawfully recorded without permission of all

7 parties. Plaintiffs seek injunctive relief requiring Securus to implement and maintain

8 policies and practices to comply with all applicable laws and regulations designed

9 to protect privacy rights, and to prevent and remedy these types of unlawful private

10 and confidential recordings, as well as restitution, damages, statutory remedies,

11 disgorgement, and other further relief this Court may deem proper.

12 11. Throughout the country, a person arrested is typically brought to a

13 detention facility or jail to be booked by law enforcement authorities. Attorneys 14 routinely contact, communicate, converse, and exchange information and legal 15 advice with detainee clients in jail, by phone or videoconference to discuss 16 confidential matters. They do so under the express understanding, representation, 17 and promise from Securus that their conversations are private, confidential, and 18 privileged, and are not to be recorded without permission from all parties. Similarly, 19 Securus represents and promises, and detainees are told and understand, their 20 conversations with their attorneys are private, confidential, and privileged and not 21 to be recorded without permission from all parties. 22 12. Prison and jail communications is a $1.2 billion a year business. Securus 23 provides phone and videoconference services to detainees nationwide and, without 24 limitation, San Diego county, San Bernardino county, Riverside county, and other

25 California county detention facilities. Securus is a leading provider of phone

26 services inside the country’s prisons and jails.

27

13. Securus claims on its website that it is the largest inmate communications

28 provider in the country serving thousands of correctional facilities and more than one

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1 million inmates in at least 45 states. The company processes over one million calls per

2 day. In 2014, Securus is reported to have generated over $400 million dollars in

3 revenue from tolls and fees it charges detainees and their families, friends, lawyers,

4 and others for speaking with detainees.

5

14. Securus records communications between detainees and the outside

6 world on servers, electronic storage devices, cables, and software separate from what

7 connects the callers. The equipment it uses to intercept, record, and share detainees’

8 and lawyers’ telephone calls facilitates such calls. The recordings are not a

9 necessary incident of the calls.

10

15. Securus gives local law enforcement agencies direct eavesdropping

11 ability and online access to recorded phone calls and the ability to listen in and

12 review them at any time. In fact, some, if not all, of Securus’ contracts with law

13 enforcement require Securus to provide inmate call recording and tracking and allow

14 law enforcement, including without limitation prosecuting attorneys, to search the

15 contents of those recordings at will and without notice.

16

Promises About Recording of Private Attorney-Client Phone Calls

17 16. Securus promises Plaintiffs, Class Members, attorneys, and the public

18 that it does not record telephone calls between attorneys and their clients. For

19 instance, its “Video Visitation” brochure states in connection with an inmate’s calls

20 to their attorney: “These private sessions will not be recorded or monitored.”

21 17. Securus also pledges in its Customer Integrity Pledge on its website to

22 its customers, inmates, friends, family, attorneys, and the corrections community,

23 without limitation, that:

24

• We will be open and honest in our dealings;

25

• We will always be truthful in what we can do and what we can't do in

26

responses to your questions and requests;

27

• We understand that confidentiality of calls is critical, and we will

follow all Federal, State, and Local laws in the conduct of our

28

business; and

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1

• We will show you respect, dignity, and integrity in all of our

2

dealings.

3

18. Securus thereby leads detainees and their attorneys, including Plaintiffs

4 and Class Members, to believe calls between them are not recorded without

5 permission of all parties, and are private and confidential.

6

19. In reality, however, Securus does eavesdrop on, listen in on, record, and

7 store private and confidential attorney-client phone calls without permission of all

8 parties, and Securus shares access and recordings with law enforcement personnel,

9 including prosecutors, as evidenced by, inter alia, reports by lawyers of production

10 of such recorded calls from prosecutors in discovery. The opportunity for the

11 prosecution to use the knowledge acquired through eavesdropping and listening to

12 the recorded phone calls to their tactical advantage, with or without admitting they

13 eavesdropped or obtained or listened to the recordings, creates a huge potential for

14 mischief and abuse and a chilling effect on the effective assistance of counsel - a

15 constitutional right.

16

Invasion of the Protected Privacy Interest

17

20. Civil detainees, like other citizens, have an objectively reasonable right

18 to expect that their phone calls, and especially private and confidential attorney-client

19 phone calls, will not be recorded or stored without their permission. Law enforcement

20 is not free to record and make use of telephone conversations, and especially attorney-

21 client telephone conversations and recordings, without limitation.

22

21. Plaintiffs, Class Members, and all attorneys and their clients have a right

23 to privacy when making or receiving attorney-client phone calls. Securus’ conduct

24 seriously violates Plaintiffs and Class Members’ statutory and common law rights of

25 privacy and invades constitutionally, statutorily, and legally protected financial and

26 privacy interests that caused, and threatens to cause, real-world, concrete, and palpable

27 harm that affects Plaintiffs and Class Members in a personal and individual way.

28

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1

Securus is Not So Secure

2

22. On or about November 11, 2015, the online journalism publication, The

3 Intercept, announced it had received “an enormous cache of phone records” and other

4 material, which revealed a major data breach by Securus of 70 million stored phone

5 call recordings, including what has now been determined to be over 57,000

6 confidential attorney-client phone calls, and counting, as well as other personal

7 information, in not less than 37 states. The recorded and leaked calls span a nearly two

8 and one-half year period beginning in December 2011 and ending in the spring of 2014

9 in calls that range from under a minute to over an hour in length. Securus makes money

10 when the call is connected, regardless of how long it lasts, and receives more revenue

11 the longer the call lasts.

12

23.

Securus advertises and promotes itself as having a superior phone system

13 called the “Secure Call Platform” that is able to monitor, record, and securely store

14 phone call recordings and make them accessible only to authorized users within the

15 criminal justice system. Securus, through promotional materials, touts itself as a

16 provider of “the most technologically advanced audio and video communications

17 platform to allow calls with a high level of security.”

18

24. Securus also states that it does “not sell, trade, or otherwise transfer to

19 outside parties, including law enforcement, personally identifiable information,”

20 except under certain limited circumstances. In fact, Securus does extensive business

21 with local and county governments and private contractors, state departments of

22 correction, the federal Bureau of Prisons, and the U.S. Marshal’s Service, all of which

23 operate the nation’s jails and run the nation’s prison systems. Securus derives

24 substantial revenue from “site commissions,” which it kicks back in the form of

25 payments to government law enforcement from revenue generated by inmate calls.

26

25. Securus’ website claims that its database contains the billing names and

27 addresses of over half a million people who are not incarcerated, as well as information

28 about 1,000,000 inmates from over 2,000 correctional facilities, that includes over 100

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1 million call records. Securus recognizes that this is valuable data and boasts it can

2 make it available at the fingertips of law enforcement and correctional authorities.

3 Securus states that the data, which is available and being sold to corrections and law

4 enforcement authorities through so-called “site commissions,” is “growing every day”

5 and can be provided to law enforcement investigators on demand.

6

Securus Breaches Its Duties and Obligations

7

26. In addition to the duties and obligations Securus has voluntarily

8 undertaken and committed to, Securus has statutory obligations not to record private

9 and confidential attorney-client phone calls without permission of all the parties. For

10 example, Securus has a duty and obligation to follow all federal, state, and local laws

11 in conducting its business, yet breached this duty by, amongst other things, recording

12 private and confidential attorney-client privileged communications without permission

13 or consent.

14

27. In its 2011 bid to provide phone service to inmates in Missouri’s state

15 prisons (just as it did in its bid to provide phone service to detainees of the San Diego

16 County Sheriff’s Office and all the other local and county detention facilities

17 throughout California), Securus undertook a duty and obligation to record and monitor

18 each call, with the exception of attorney-client calls. But, the database provided to The

19 Intercept shows that over 57,000 recordings of Missouri inmate-attorney

20 communications were recorded, collected, stored, disclosed, and ultimately hacked.

21

28. The Intercept arrived at the 57,000 figure by looking up each of the nearly

22 1.3 million phone numbers that inmates called in a public directory of businesses to

23 find out whether a law firm or attorney’s office is associated with that number. Those

24 numbers, however, do not include calls to attorneys’ cellphones or other attorneys’

25 numbers not listed in a public business directory, and the number of recorded attorney-

26 client calls is undoubtedly higher.

27

29. Securus has undertaken these duties and obligations not to record private

28 attorney-client conversations and communications, both directly to users of the

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1 Securus system, and in its contracts with law enforcement agencies, yet it appears

2 Securus has no intention of ceasing its unlawful, unconstitutional eavesdropping,

3 recording, and invasion of private attorney-client communications. Detainees and

4 lawyers are all at substantial risk of having their conversations monitored, recorded,

5 and used against them to prejudice their criminal cases, and that Defendant will

6 continue to violate their rights.

7

30. Securus claims on its website that it has a superior, revolutionary

8 technology that collects intelligence from more than 2,600 law enforcement and

9 correction agencies, “providing unbeatable lead generation.” It also promotes itself as

10 “SAS 70 and Sarbanes-Oxley compliant.”

11

31. Securus promises that its platform will “allow calls with a high level of

12 security” and that it “understands that confidentiality of calls is critical, and [it] will

13 follow all federal, state, and local laws in the conduct of [its] business.” It also pledges

14 to “provide and invest in security features that will make all parties and the public safe

15 while maintaining the critical family connection to inmates.”

16

32. However, the sheer scale of the Securus hack of over 70 million

17 recordings shows that the company’s promises and promotional and advertising claims

18 are false and misleading and that Securus has failed to live up to its own duties,

19 obligations, and undertakings.

20

33. In addition, the qualitative nature of the data hack reveals the falsity of

21 Securus’ promises and promotional and advertising materials. The Securus database

22 reveals that the recordings contained prisoners’ first and last names; the phone numbers

23 they called; the date, time, and duration of the calls; the inmates’ Securus account

24 numbers; as well as other information. In addition to metadata, each phone call record

25 includes a “recording URL”, which provides a link to where the audio recordings of

26 the calls can be downloaded with the click of a mouse.

27

34. On November 12, 2015, Securus admitted the data breach and flaws in

28 its security measures for the first time when it emailed The Intercept and stated

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1 “evidence suggests that an individual or individuals with authorized access to a limited

2 set of records may have used that access to inappropriately share those records.”

3

35. According to The Intercept, in an email thread from July 21, 2014, two

4 Securus employees discussed the breach. “OMG……..this is not good!” reads

5 one email contained in the document. “The company will be called to task for this if

6 someone got in there that shouldn’t have been.” There is no indication the 2014 hack

7 had been made public prior to The Intercept article.

8 36. In response to The Intercept article Securus issued a press release

9 saying,

10

"It is very important to note that we have found absolutely no evidence of

11

attorney-client calls that were recorded without the knowledge and consent of

those parties," Securus added. "Our calling systems include multiple safeguards

12

to prevent this from occurring. Attorneys are able to register their numbers to

13 exempt them from the recording that is standard for other inmate calls.

14 Securus did in fact have undeniable evidence that of attorney-client calls that were

15 recorded without the knowledge and consent of those parties as further set forth

16 below.

17

37. Securus lied thinking it was “in the clear” because the private phone calls

18 Securus recorded between detainees and their attorneys while in physical custody in

19 San Diego county were not included in The Intercept cache of phone calls.

20

No Permission or Warning

21

38. Commencing in and around 2008, the San Diego County Sheriff’s

22 Office (“Sheriff”) verbally and in writing informed the San Diego criminal defense

23 bar that attorneys who requested to opt-in to, and have their telephone numbers

24 placed on, a “Do Not Record” database, and register those numbers to persons whose

25 conversations with inmates may be privileged, that their calls would be “privatized”

26 and not recorded.

27

39. On or about July 10, 2008, Plaintiff Elliott provided the Sheriff with

28 three office numbers and two wireless numbers which were placed in the “Do Not

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1 Record” database and registered to him as private, thereby informing the Sheriff he

2 did not give permission to have his telephone calls with detainees and prisoners

3 recorded.

4 40. On July 10, 2008, Detective David Hale of the Sheriff’s office wrote

5 Mr. Elliott and stated: “The numbers you requested were placed into the database as

6 privatized.” To this day, Plaintiff Elliott has never been informed or warned that his

7 telephone calls with his detained clients were, or may be, monitored or recorded.

8 41. To the contrary, since at least May 8, 2010, attorneys who have inquired

9 about the privacy or recording of their phone calls with detained clients have been

10 told specifically that if their number is in the “Do Not Record” database, their calls

11 will not be recorded.

12 42. Attorney-client users of the Securus phone system did not and do not

13 hear any “Monitor and Record” prompt, or any other warning or indication that that

14 the phone call was, or is, being monitored and recorded.

15 43. But in fact, Securus did (and does) record private phone calls to and

16 from detainees to their criminal defense attorneys, including the Public Defender’s

17 Office, Alternate Public Defender’s Office, and Assigned Counsel’s Office, without

18 their permission and without any warning.

19

Securus Unlawfully Records Private Attorney-Client Calls

20

44. As an example, without limitation, of dozens of emails evidencing

21 unlawful recording, on March 25, 2014 Captain Frank Clamser of the Sheriff’s office

22 wrote Marlon Miller at Securus stating:

23

“Marlon,

24

I randomly reviewed the call logs for the below telephone numbers for

25

the past year, April 1, 2013 to today. All of these numbers are set as

private numbers in the SCP and should not be being recorded. All of

26

these numbers were recorded at some point in the past year. I know you

27

are trying to determine why private calls are being recorded and I wanted

28

to provide you additional examples.

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1

6192343429 3103937536 2
6192310401 6192318575

3

6192322311 6192327200

4

6192342300 6192355638

5

6192361151 6192371700

6

6193384605 6193384700

6193384800 6193384839

7

6195793316 7606302000

8

7606303333 7609454000

9

7609455535”

10

45. Plaintiff Elliott’s telephone number is 760-630-3333 and is included in

11 the Sheriff’s email as a phone number that is private, should not be recorded, was

12 recorded, and was among the “additional examples” of such recordings.

13

46. Securus’ own records, provided in a declaration by Ian Jones filed on

14 or about July 5, 2016 (ECF No. 4-1), show that during the period from November 2,

15 2012 through May 5, 2016, while in the Sheriff’s custody, Plaintiff Romero placed

16 85 separate phone calls totaling over 5.5 hours to his attorney’s telephone number

17 (619-231-0401), which is set forth in the Sheriff’s March 25, 2014 email. In fact,

18 Plaintiff Romero had a ten-minute phone call with his attorney on March 24, 2014,

19 the day before Captain Clamser’s email which provided “additional examples” of

20 illegally recorded calls.

21

47. Securus’ records also show that from April 11, 2014 through October

22 12, 2015 while in the Sheriff’s custody, Plaintiff Romero placed 8 separate phone

23 calls to the San Diego Public Defender’s telephone number (619-338-4700), which

24 is set forth in the Sheriff’s March 25, 2014 email.

25

48. Securus’ records also show that on January 29, 2015 while in the

26 Sheriff’s custody, Plaintiff Tiscareno placed 3 separate phone calls to his attorney’s

27 telephone number (619-231-0401), which is set forth in the Sheriff’s March 25, 2014

28 email.

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1 49. On April 14, 2014, Captain Clamser emailed Marlon Miller and

2 Christopher Hudson at Securus stating:

3

“Marlon,

4

5

Fished through some of the private calls for the month of April. Attached

6

is a list of private calls I found that were recorded. Can you please

achieve [sic] these calls so they are not able to be listened to. Is there

7

any update on resolving the problem that is allowing these calls to be

8

randomly recorded?”

9

50. Two weeks later on April 29, 2014, Captain Clamser again emailed

10 Marlon Miller and Christopher Hudson at Securus, stating:

11

12

“The attached Excel document contains a list of private call [sic] that were

recorded. The most recent call was recorded yesterday. This problem still

13

exists within the SCP and has not been rectified.”

14

15

51. On May 21, 2014, Captain Clamser again wrote Securus’ Chris

16 Hudson, stating:

17

“The attached excel document has a list of private calls that were recorded.

18

The problem still exists. Please ensure these calls are blocked from be

19

[sic] able to be listened to.”

20 52. These and other emails set forth herein and elsewhere describe with

21 detailed particularity the fact that calls between detainees and their attorneys marked

22 private are not only being recorded, but also listened to, without permission, consent,

23 or warning of all parties.

24

Securus “Purges” Lists of Private Recorded Calls

25

53. Rather than notify Plaintiffs, Class Members, and its attorney and

26 detainee customers, Securus “purged” from its system the list of private calls that

27 were recorded.

28

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1

54. In an email from Christopher Hudson to Captain Clamser on

2 Wednesday, April 2, 2014, Mr. Hudson stated:

3

4

“When I spoke with Marlon last her [sic] was having these numbers purged.

Marlon is not here today. I will follow up with him tomorrow to check the status 5
on this issue. I will keep you updated as well.”

6

7

55. On June 12, 2014, Captain Clamser wrote Chris Hudson stating:

8

“Attached is a list of private calls that were recorded within the system.

9

Can you please purge the calls. is there any time line on when the issue

10

will be resolved.”

11

56. On June 17, 2014, Mr. Hudson again wrote Captain Clamser stating:

12

13

“Also, Here is the latest update regarding San Diego County and the issue

14

with recorded attorney calls per Marlon Miller. The recordings will be

purged as a part of this week’s maintenance window.”

15

16

57. And again on July 18, 2014 Captain Clamser emailed Securus:

17

“Please see the attached for a list of private calls that show they were

18

recorded. Please purge.”

19

58. And again on August 5, 2014 Captain Clamser emailed Chris Hudson

20 at Securus:

21

22

“Please purge the calls on the attached Excel document.”

23

59. And again on August 8, 2014 Chris Hudson emailed Captain Clamser:

24

25

“The last of the calls being purged was the list that you sent me on

26

08/05/2014 regarding the calls that took place from 07/18/2014 through

07/21/2014.”

27

28

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1 60. And again on August 21, 2014, Securus’ Technical Support Technician,

2 Agent ID: 120741, wrote Captain Clamser stating:

3

“This e-mail is to inform you that your request to have calls purged for following

4

private attorney numbers: 6193384700, 6195793316, 6194462900 has been

5

completed. This e-mail is to gain closure authorization for the ticket currently

6

open. Please respond to this e-mail with closure authorization or contact Securus

7

Technical Support at 866-558-2323 and reference ticket number 14857901.”

8

9

Securus Knows the Private Numbers and Calls That Were Recorded

10

61. On March 25, 2014, Captain Clamser emailed Kris Alderman at

11 Securus stating:

12 “I thought you said that you thought they could query all the private numbers to
13 see if any other number were being recorded.” 14
Later that day, Mr. Alderman wrote back, 15

16

“They can, but if they have specifics it will help . . . ”

17

62. Then on June 19, 2014, Debbie Cates from Securus wrote an email to

18 Ankur Desai, Sr. Manager of Technical Support, and Kris Alderman, amongst other

19 Securus personnel, stating:

20

“22 calls out of 15,000 has been challenging to capture.”

21

22

63. On June 20, 2014, Mr. Desai emailed Captain Clamser stating:

23

24

“Here is the latest. We have top resources looking into this. Please don’t

25

forward this email, its internal.”

26 The internal email stated, “Jim Rice is working on a report that will allow us to be 27 proactive moving forward to identify calls that should not be recorded.” 28

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1 64. On November 13, 2015 there was an email exchange between Captain

2 Clamser and Kris Alderman in response to The Intercept article as follows:

3

4

Kris Alderman: “You may or may not have received notice of the media report

5

attached regarding private calls released to the public. Please see our formal

6

response and additional information about what we are doing moving forward

7

with the incident.”

8

Captain Clamser: “Thank you for the information. Can you let me know if any

9

of the calls that were released are from San Diego?”

10

11

Kris Alderman: “They were not, we are in the clear [emphasis added]. I have

12

another release coming sometime today.”

13

65. The contents of the above-described emails demonstrate with

14 particularity (who, what, when, and where) private attorney-client phone calls were

15 listened in on and recorded without permission and that Securus’ tried to conceal

16 these facts.

17

66. There is no inquiry required to be answered as to any individual phone

18 call; Securus knows and has identified them, who they were to, and who the parties

19 were. There is no issue regarding the private nature of these calls; Securus has

20 marked and identified them private. And, the recorded calls can easily be identified

21 by Securus; they recorded and compiled them.

22

67. The particularized facts evidenced by, without limitation, the email

23 contents set forth above are:

24 a. Since 2008, San Diego county criminal defense attorneys have been told

25

verbally and in writing that if they placed their phone numbers in a “Do Not

26

Record” database, their phone conversations would not be recorded;

27 b. From at least April 1, 2013 through August 5, 2014 Securus recorded attorney

28

phone numbers and calls that were set as private numbers in the Securus

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1

system that should not have been recorded and that were expressly requested

to be used for private conversations and the seeking and giving of professional 2
legal advice and information between attorneys and their clients;

3

4 c. Commencing on March 25, 2014, Securus was expressly notified of the dates,

identifiers, numbers, lengths of calls, privatization status, and other specific

5

identifying information at least 22 “additional” examples out of 15,000 such

6

recordings;

7

d. From March 25, 2014 until at least August 5, 2014 Securus knowingly

8

continued to monitor and record attorney-client conversations without

9

permission or warning on attorney phone numbers that were set as private

10

numbers in the Securus system that should not have been recorded and that

11

were expressly requested to be used for private conversations and the seeking

and giving professional legal advice and information; 12

13 e. From March 25, 2014 through August 21, 2014 Securus “purged” one or more

14

lists of phone numbers, lists of calls, and actual recordings of illegally

recorded conversations seeking and giving professional legal advice and

15

information that were set and known to be private; and

16

17 f. On November 13, 2015, Securus made a conscious decision to conceal, suppress, and cover-up the illegal recordings stating it was “in the clear.”
18

19

68. Securus knew these calls were being recorded unlawfully and covered it

20 up by suppressing and concealing the true facts. Securus had a duty and was bound to

21 disclose its unlawful eavesdropping and recording due to its superior and exclusive

22 knowledge of the true facts which were not known or reasonably accessible to

23 Plaintiffs and Class Members, and its express representations that it would follow all

24 federal, state, and local laws.

25

69. Instead, Securus actively concealed, suppressed, omitted, and failed to

26 disclose the true facts concerning the recording, storage, and security of private,

27 confidential, and privileged attorney-client phone calls with the intent to induce

28

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1 Plaintiffs and Class Members to continue to purchase Securus’ communications

2 services.

3

70. Plaintiffs and Class Members were unaware of these suppressed and

4 omitted material facts at the time they used the Securus system. Plaintiffs and Class

5 Members relied on the truthfulness and reliability of the statements made by Securus.

6 Plaintiffs and Class Members did not know, or have any reason to know, of these facts,

7 conditions or circumstances. If they had known the true facts at the time of their

8 telephone calls, Plaintiffs and Class Members would not have used or paid for Securus’

9 services as they did for their attorney-client communications and would have taken

10 action sooner to assert and protect their privacy rights.

11

71. Plaintiffs and Class Members did not discover, and could not have

12 discovered with any amount of reasonable diligence, the true facts regarding Securus’

13 recording of their private attorney-client calls on or before March 3, 2016 when

14 approximately 2,330 emails between the Sheriff’s office and Securus’ were published

15 in response to a California Public Records Act request. Plaintiffs and Class Members

16 were ignorant of the true facts regarding Securus’ recording of their private attorney-

17 client calls, and lacked the ability to have earlier discovered the true facts, until

18 March 3, 2016 when the emails were published.

19

72. Defendant’s acts, omissions, and concealments have rendered

20 unavailable and futile any other remedies which could have been pursued or exhausted.

21 Plaintiffs and Class Members have suffered, and will continue to suffer, irreparable

22 harm by its very definition because their constitutional, statutory, and common law

23 protected privacy rights and interests have been, and continue to be, violated by the

24 actual and threatened intrusion and invasion thereof by Defendant.

25 73. Not even an award of damages following Plaintiffs’ delayed discovery of

26 the illegal recordings can undo the irreparable harm suffered, and there neither was nor 27 is any other remedy available to Plaintiffs and Class Members to pursue or exhaust that 28 would not be futile.

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1

Plaintiffs Have Suffered Individualized Actual Concrete Injury in Fact

2 74. The United States Supreme Court has characterized the sixth

3 amendment’s guarantee of assistance of counsel in all criminal prosecutions as a

4 right that is fundamental to library and justice. Communication between an attorney

5 and his client must be free and open and remain confidential for the right to effective

6 assistance of counsel to have any meaning.

7

75. Only through confidential communication can both the attorney and the

8 client can make informed choices about the preparation and conduct of the client’s

9 defense. If the government can obtain damaging information from counsel,

10 defendants will not confide in their lawyers. The predictable result would be to

11 undermine the quality of the legal representation. Only through free, open, and

12 confidential communication can an attorney provide optimal legal representation.

13

76. This is not a case of “no harm, no foul.” Plaintiffs and the Class

14 Members paid for private phone calls that were eavesdropped on and recorded by

15 Securus, and which invaded their legally, statutorily, and constitutionally protected

16 interests of the right to privacy and the right to effective assistance of counsel.

17 Plaintiffs and the Class members would not have paid for or made these types of

18 phone calls, or would not have paid as much for such compromised phone calls, had

19 they known the truth about Securus’ eavesdropping and recording.

20

77. This in and of itself is concrete, particularized, actual harm and injury.

21 Unfortunately, and even more importantly, the actual and imminent harm inflicted

22 on Plaintiffs and the Class Members does not start and end with the potentially

23 hundreds of millions of dollars of tangible damage caused by Securus’ conduct.

24 78. As an example, without limitation, of both the tangible and intangible

25 harm caused by Securus conduct, on or about June 17, 2016, Plaintiff Elliott received

26 a collect call from a detainee who was in the Sheriff’s custody in county jail. Mr. 27 Elliott, now being aware that his prior phone calls with detainees had been 28 eavesdropped on, and uncertain about the privacy of his phone calls, including

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1 without limitation this particular call, was faced with the Hobson’s choice of either: 2 (a) paying for using an insecure phone line with a detainee for a conversation in a 3 guarded exchange of limited, closed, and compromised information and advice; (b) 4 paying for having a free, open, and confidential communication recorded and used 5 against him and a client; or (c) not accepting or paying for the call and either 6 foregoing communication entirely, or devoting significant time, cost, expense, and 7 effort to visit the detainee and only exchange information and give legal advice in 8 person. Plaintiff Elliott and the Attorney Class Members are suffering the same 9 imminent harm in connection with every Securus phone system call to or from a 10 detainee in the custody of law enforcement. 11 79. The detainee, on the other hand, without limitation, is and was faced 12 with the proposition of either: (a) having his constitutionally protected right to 13 effective assistance of counsel illegally compromised; or (b) incurring fees and 14 expenses for Mr. Elliott to make a delayed trip to jail to securely visit him in person, 15 thereby turning a ten-minute phone call into a three-hour trip and jeopardizing his 16 right to timely assistance of counsel. 17 80. Plaintiffs and the Class Members have suffered real-world, actual, 18 concrete harm by, without limitation: (a) paying for calls they otherwise would not 19 have paid for had they know of Securus’ conduct; and (b) having their legally 20 protected rights to privacy and effective assistance of counsel invaded. The Attorney 21 Class and Current Detainee Class is presently facing the same imminent real, actual, 22 and concrete harm and injury from Securus’ concealment of its illegal conduct and 23 its failure to redress the harm. 24 81. Plaintiff Elliott and the Attorney Class Members are presently suffering 25 a real, actual, imminent, and concrete harm and injury traceable to Securus’ conduct 26 resulting from the uncertainty and confusion of having their phone calls with 27 attorneys recorded by: (a) paying for using an insecure phone line for a client 28 conversation in a guarded exchange of limited, closed, and compromised
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1 information and advice, on the one hand; or (b) on the other hand: (1) paying for 2 having free, open, and confidential communication recorded and used against them 3 and their clients and compromising not only the communication, but also the 4 ultimate success or failure of the defense and therefore the attorneys’ reputation and 5 livelihood; (2) not paying for or accepting phone calls and devoting significant time, 6 cost, expense, and effort to make in person visitations, thereby diminishing and 7 diverting attorney income and resources; (3) subjecting themselves and their 8 reputations to damage from the diminished effectiveness of their professional 9 assistance in the defense of their clients through limitations on their 10 communications, exchange of information, advice; and (4) changing and/or 11 compromising defense strategies in connection with the eavesdropping and 12 recording of confidential communications with their clients. 13 82. The total number of private phone calls between detainees and their 14 lawyers recorded without permission or warning is currently unknown, but the 15 recording of private attorney-client calls appears endemic to the Securus system on a 16 California-wide, and indeed a nationwide, basis. Based on the contents of emails set 17 forth above, it appears there were at least 15,000 such calls illegally recorded between 18 April 1, 2013 and June 19, 2014 in San Diego county alone. 19 83. Securus, though, can tell us how many private calls were unlawfully 20 recorded. Securus not only brags in its promotional materials, in its proposals, and in 21 its contracts that it places this information and law enforcements “fingertips,” but also 22 admits in the content of the emails set forth above that it has the capability to query all 23 the private numbers which attorneys affirmatively “privatized” and which Securus 24 knew they did not have permission to record to see: (a) if any such numbers were in 25 fact being recorded; and (b) how many of such private calls were in fact recorded. 26 84. Securus’ ability to identify calls marked private which they did not have 27 permission to record, but which they did in fact record is further evidenced by Mr. 28 Jones’ declaration filed on or about July 5, 2016 (ECF No. 4-1).
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1 85. In addition to San Diego county (population 3.2M), Securus also does 2 business in Riverside county (population 2.2M), San Bernardino county (population 3 2M), San Mateo county (population 700K), and other California counties. In all, 4 Securus claims to serve 70 county detention facilities in California alone. Based on an 5 extrapolation of the 15,000 illegally recorded calls in San Diego county searched by 6 Securus, as well as the Missouri statistics, the potential number of private attorney7 client phone calls unlawfully recorded by Securus is staggering, with well over 8 500,000 calls estimated per year made just to the Public Defenders’ offices in the four 9 counties listed above. 10 86. Securus has been wrongly and unjustly enriched by payments illegally 11 collected by Securus, and the retention of such payments is unfair and unlawful given

12 the true facts regarding the eavesdropping, listening to, recording, storage, disclosure,

13 and security of the conversations between Plaintiffs, Class Members, and detainees

14 and their attorneys who used the Securus system. Securus should not be allowed to

15 retain the proceeds from the benefits conferred upon it by Plaintiffs, Class Members,

16 and attorney-client users of the Securus system.

17

PLAINTIFFS’ EXPERIENCES

18

Plaintiff Romero

19 87. Plaintiff Juan Romero is a resident of San Diego, California and the

20 county of San Diego who formerly was a detainee and prisoner of, without limitation,

21 the San Diego County George Bailey Detention Facility, at various times from

22 August 15, 2012 through May 6, 2016. During the Class Period, Mr. Romero used

23 the Securus phone systems in private conversations with his attorneys. Mr. Romero’s

24 attorneys’ phone conversations with detainees were recorded. On information and

25 belief, Securus recorded Mr. Romero’s private, confidential, and privileged phone calls

26 with his attorneys without warning to, or permission from, all parties. 27 28

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1

88. Neither Plaintiff Romero nor his attorneys have received any notice of

2 the recording of their phone calls. Securus’ unlawful recordings compromised the

3 private, confidential, and privileged conversations of Mr. Romero and his lawyers.

4

Plaintiff Tiscareno

5

89. Plaintiff Frank Tiscareno is a resident of Menifee, California and the

6 county of Riverside who formerly was a detainee and prisoner of, without limitation,

7 the San Diego County Central Jail, from February 14, 2013 through February 25,

8 2013 and October 8, 2013 and September 26, 2015. During the Class Period, Mr.

9 Tiscareno used the Securus phone systems in private conversations with his attorney.

10 Mr. Tiscareno’s attorney’s phone conversations with detainees were recorded. On

11 information and belief, Securus recorded Mr. Tiscareno’s private, confidential, and

12 privileged phone calls with his attorney without warning to, or permission from, all

13 parties.

14

90. Neither Plaintiff Tiscareno nor his attorney have received a notice of

15 the recording of their phone calls. Securus’ unlawful recordings compromised the

16 private, confidential, and privileged conversations of Mr. Tiscareno and his lawyer.

17

Plaintiff Elliott

18 91. Plaintiff Kenneth Elliott is a resident of San Diego, California and the

19 county of San Diego who is a licensed member of the California Bar and a criminal

20 law attorney practicing in San Diego county. During the Class Period and continuing

21 to this day, Mr. Elliott used, and continues to use, the Securus phone system in private

22 conversations with his clients to communicate and give professional advice, and to

23 both give and receive information in connection with the legal representation of his

24 clients while such clients are in the physical custody of the Sheriff.

25 92. On or about July 10, 2008, Mr. Elliott informed the Sheriff he was not

26 giving permission to have his telephone calls with detainees and prisoners recorded 27 by requesting his three office telephone numbers and two mobile phone numbers be 28 placed in the “Do Not Record” database and be privatized. On July 10, 2008,

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1 Detective David Hale of the Sheriff’s office wrote Mr. Elliott and stated: “The

2 numbers you requested were placed into the database as privatized.”

3 93. Mr. Elliott’s private and privileged attorney phone conversations with

4 detainees were recorded, as evidenced by the contents of the emails set forth above.

5 Securus recorded his private, confidential, and privileged phone calls with his clients

6 without warning to, or permission from, all parties.

7

94. Plaintiff Elliott did not give permission for, and was neither warned of

8 nor received notice of, the recording of his private and privileged phone calls with

9 his clients. Securus’ unlawful recordings compromised, and continue to

10 compromise, the private, confidential, and privileged conversations of Mr. Elliott

11 and his detainee clients.

12

CLASS ACTION ALLEGATIONS

13

95. Plaintiffs bring this action pursuant to Federal Rule of Civil Procedure

14 23 on behalf of themselves and all Members of the “Attorney Class,” preliminarily

15 defined as:

16

The Attorney Class

17

All attorneys: (a) whose conversation(s), or any portions thereof were

18

listened to, eavesdropped on, and/or recorded by Securus from July 10, 2008

19

to the applicable opt-out date, inclusive: (b) without permission of all parties

to such conversation; (c) by means of an electronic device; (d) with a person

20

for whom they were serving as an attorney; and (e) while such person was in

21

the physical custody of a law enforcement officer or other public officer, or

22

who was on the property of a law enforcement agency or other public agency

23

in California.

24 Such persons are collectively referred to herein individually as an “Attorney Class

25 Member” and collectively as the “Attorney Class” or “Attorney Class Members.”

26

96. Additionally, Plaintiffs bring this action pursuant to Federal Rule of

27 Civil Procedure 23 on behalf of themselves and all Members of the “Former

28 Detainee Class,” preliminarily defined as:

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1

The Former Detainee Class

2

All persons who were physically in California, and: (a) whose

3

conversation(s), or any portions thereof with that person’s attorney(s) were

listened to, eavesdropped on, and/or recorded by Securus from July 10, 2008

4

to the applicable opt-out date, inclusive: (b) without permission of all parties

5

to such conversation; (c) by means of an electronic device; (d) while such

6

persons were in the physical custody of a law enforcement officer or other

7

public officer, or who were on the property of a law enforcement agency or

other public agency.

8

9

97. Additionally, Plaintiffs bring this action pursuant to Federal Rule of

10 Civil Procedure 23 on behalf of themselves and all Members of the “Current

11 Detainee Class,” preliminarily defined as:

12

The Current Detainee Class

13

All persons in California, who currently, and on the applicable opt-out date,

14

inclusive, are: (a) in the physical custody of a law enforcement officer or

15

other public officer, or who is on the property of a law enforcement agency

16

or other public agency, in a facility served by Securus as a

telecommunications service provider; (b) whose conversation(s), or any

17

portions thereof with their attorney(s) were listened to, eavesdropped on,

18

and/or recorded by Securus from July 10, 2008 to the applicable opt-out date,

19

inclusive; (c) without permission of all parties to such conversation; (d) by

20

means of an electronic device; and (e) while such persons were in the physical

custody of a law enforcement officer or other public officer, or who were on

21

the property of a law enforcement agency or other public agency in

22

California.

23

24

98. The Classes described in this Complaint may be jointly referred to as

25 the “Class” and proposed Members of the Classes may be jointly referred to as

26 “Class Members.”

27

99. Excluded from the Class are the Defendant herein, law enforcement

28 agencies and personnel, members of the foregoing persons’ immediate families and

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1 their legal representatives, heirs, successors, or assigns, and any entity or person in

2 which Defendant has or had a controlling or supervisory interest or control over at

3 all relevant times.

4

100. Plaintiffs satisfy the numerosity, commonality, typicality, adequacy,

5 and predominance prerequisites for suing as representative parties pursuant to Rule

6 23 of the Federal Rules of Civil Procedure.

7

101. Numerosity. The exact number of proposed Class Members is

8 currently not known, but is believed to consist of hundreds if not thousands of

9 former or current Securus detainees and attorneys who have used, or are using,

10 Securus’ phone system and have had their private attorney-client phone

11 conversations recorded without their permission or warning, making joinder of each

12 individual Class Member impracticable.

13

102. Commonality. Common questions of law and fact exist for the

14 proposed Class’ claims and predominate over questions affecting only individual

15 Class Members. Common questions include, without limitation:

16 a. Whether the recording of a telephone call between a detainee and his or her

17

or her attorney without permission or warning constitutes a violation of each

18

Class Member’s CIPA rights, common law tort of invasion of privacy rights,

19

and other statutory and common law rights as set forth herein;

20 b. What monitoring, limiting, and supervisory procedures and practices should

21

Securus be required to implement to ensure ongoing protection of each

22

Attorney Class Member’s and Current Detainee Class Member’s CIPA or

23

other legal rights and as part of any injunctive relief ordered by the Court;

24 c. Whether Securus violated the Class Members’ rights under California Penal

25

Code Section 636 by recording of a telephone call between a detainee and his

26

or her attorney without permission or warning;

27 d. Whether Securus acted negligently, fraudulently, and unlawfully by, without

28

limitation: (i) failing to adequately protect Class Members’ privacy rights;

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1

(ii) eavesdropping on, listening in to, recording, disclosing, and/or storing

2

private, confidential, and privileged telephone calls between detainees and

3

their attorneys without permission of all parties; (iii) failing to follow all

4

applicable laws; (iv) failing to notify, warn, or get permission of Plaintiffs and

5

Class Members, at the point of call or otherwise, to record the call; (v) failing

6

to notify Plaintiffs and Class Members after the recording of private telephone

7

calls and conversations between a detainee and his or her attorney without

8

permission or warning that the call had been recorded; and (vi) failing to

9

maintain adequate monitoring, limiting, and supervisory procedures, policies,

10

and practices;

11 e. Whether Plaintiffs and Class Members may obtain damages, restitution,

12

disgorgement, declaratory, and injunctive relief against Securus; and

13 f. What monitoring, limiting, supervisory, policies procedures and practices,

14

security procedures, and recording warning and notification procedures

15

Securus should be required to implement as part of any injunctive relief

16

ordered by the Court.

17

103. Typicality. Plaintiffs’ claims are typical of the claims of the proposed

18 Class because, among other things, Plaintiffs and Class Members sustained similar

19 injuries and statutory damages as a result of Securus’ uniform wrongful conduct and

20 their legal claims all arise from the same core Securus practices.

21

104. Adequacy. Plaintiffs will fairly and adequately protect the interests of

22 the Class. Their interests do not conflict with Class Members’ interests and they

23 have retained counsel competent and experienced in complex, privacy, and class

24 action litigation to vigorously prosecute this action on behalf of the Class. In

25 addition to satisfying the prerequisites of Rule 23(a), Plaintiffs satisfy the

26 requirements for maintaining a class action under Rule 23(b)(3).

27

105. Common questions of law and fact predominate over any questions

28 affecting only individual Class Members and a Class action is superior to individual

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1 litigation. The amount of damages available to individual Plaintiffs are insufficient

2 to make litigation addressing Securus’ conduct economically feasible in the absence

3 of the Class action procedure. Individualized litigation also presents a potential for

4 inconsistent or contradictory judgments, and increases the delay and expense to all

5 parties and the court system presented by the legal and factual issues of the case. By

6 contrast, the Class action device presents far fewer management difficulties and

7 provides the benefits of a single adjudication, economy of scale, and comprehensive

8 supervision by a single court.

9

106. In addition, Class certification is appropriate under Rule 23(b)(1) or

10 (b)(2) because:

11 a. the prosecution of separate actions by the individual Members of the

12

proposed Class would create a risk of inconsistent or varying adjudication

13

which would establish incompatible standards of conduct for Securus;

14 b. the prosecution of separate actions by individual Class Members would create

15

a risk of adjudications with respect to them which would, as a practical matter,

16

be dispositive of the interests of other Class Members not parties to the

17

adjudications, or substantially impair or impede their ability to protect their

18

interests; and

19 c. Securus has acted or refused to act on grounds that apply generally to the

20

proposed Class, thereby making final injunctive relief or declaratory relief

21

described herein appropriate with respect to the proposed Class as a whole.

22

FIRST CAUSE OF ACTION

23

Violation of the California Invasion of Privacy Act

24

Cal. Penal Code §§ 630, et seq.

25

(On Behalf of the Plaintiffs Individually and the Class)

26

107. Plaintiffs and Class Members incorporate by reference the foregoing

27 allegations.

28

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1

108. The California Invasion of Privacy Act, Cal. Penal Code §§ 630, et seq.

2 (“CIPA”), states that: “The Legislature hereby declares that advances in science and

3 technology have led to the development of new devices and techniques for the

4 purpose of eavesdropping upon private communications and that the invasion of

5 privacy resulting from the continual and increasing use of such devices and

6 techniques has created a serious threat to the free exercise of personal liberties and

7 cannot be tolerated in a free and civilized society.”

8

109. Plaintiffs and Class Members made and received private, confidential,

9 and privileged attorney-client telephone calls which were recorded by Securus

10 without permission or consent of all parties and without disclosure to both parties

11 that the phone calls may be, or were being, recorded.

12

110. California Penal Code Section 636(a) prohibits “[e]very person” from

13 ‘without permission from all parties to the conversation, eavesdrop[ping] on or

14 record[ing], by means of an electronic device, a conversation, or any portion thereof,

15 between a person who is in the physical custody of a law enforcement officer or

16 other public officer, or who is on the property of a law enforcement agency or other

17 public agency, and that person's attorney, religious adviser, or licensed physician...”

18

111. Pursuant to California Penal Code Section 632(b), Securus is a

19 “person.”

20

112. Securus violates the CIPA when it listens to, eavesdrops, or records,

21 stores, and discloses, without permission private, privileged, and confidential phone

22 calls made and received by Plaintiffs and Class Members without permission of all

23 parties.

24

113. Securus does not have express or implied permission of all parties to

25 eavesdrop upon or record private, confidential, and privileged telephone calls to or

26 from attorneys with their clients without warning. To the contrary, Securus 27 expressly undertook a duty and obligation to Plaintiffs and Class Members when it 28 told them their calls would not be recorded. In fact, Securus was expressly told it

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1 did not have permission to record Plaintiffs and the Class’ calls because the phone

2 numbers recorded were in Securus “Do Not Record” database and “privatized” list.

3

114. Plaintiffs and Class Members did not, and do not, consent to or give

4 permission for, expressly or impliedly, Securus’ eavesdropping upon and recording

5 of their private, confidential, and privileged phone calls between attorneys and their

6 clients. Securus does not disclose to or warn Plaintiffs and Class Members that their

7 private, confidential, and privileged calls may be recorded, stored, and disclosed to

8 third parties. Plaintiffs and Class Members do not know or expect, or have any

9 reason to know or suspect, that Securus records their private, confidential, and

10 privileged phone calls between attorneys and their clients.

11

115. Neither Plaintiffs nor the Class Members did discover, or could have

12 discovered with any amount of reasonable diligence, the true facts regarding Securus’

13 recording of their private attorney-client calls until March 3, 2016 when approximately

14 2,330 emails between the Sheriff’s office and Securus’ were published in response to

15 a California Public Records Act request. Plaintiffs and the Class Members were

16 ignorant of the true facts regarding Securus’ recording of their private attorney-client

17 calls, and lacked the ability to have earlier discovered the true facts, until March 3,

18 2016 when the emails were published. Discovery of the true facts did not actually

19 occur, and could not have occurred, until after any applicable statutes of limitation,

20 including the one-year statute of limitations for violations of the CIPA.

21

116. California Penal Code Section 637.2 provides: “Any person who has

22 been injured by a violation of this chapter may bring an action against the person

23 who committed the violation for the greater of the following amounts:

24

(a) Five thousand dollars ($5,000).

25

(b) Three times the amount of actual damages, if any, sustained by the

26 Plaintiffs.

27

(c) Any person may, in accordance with Chapter 3 (commencing with

28 Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, bring an action to

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1 enjoin and restrain any violation of this chapter, and may in the same action seek

2 damages as provided by subdivision (a).

3

(d) It is not a necessary prerequisite to an action pursuant to this section that

4 the Plaintiff has suffered, or be threatened with, actual damages.”

5 117. Accordingly, Plaintiffs and the Class request that the Court issue

6 declaratory relief declaring Securus’ practice of eavesdropping on, listening to,

7 recording, disclosing, or using private, confidential, and privileged between detainees

8 and their attorney without permission of all parties unlawful.

9

118. Plaintiffs and the Attorney Class and Current Detainee Class request the

10 Court enter an injunction requiring Securus to cease the unlawful practices described

11 herein and enjoining Securus from eavesdropping on, listening to, recording,

12 disclosing, or using private, confidential, and privileged communications between

13 detainees and their attorneys without permission of all parties.

14

119. Plaintiffs and the Class Members request the Court order Securus to

15 identify, seek, obtain, encrypt, and ultimately destroy at the conclusion of this action

16 all existing recordings in their possession or the possession of third parties to whom

17 they have given access or disclosed unlawfully recorded communications.

18

120. Plaintiffs and the Attorney Class and Current Detainee Class request that

19 the Court enter an injunction ordering that Securus: (a) engage a third party

20 ombudsman as well as internal compliance personnel to monitor, conduct test, and

21 audit Securus’ safeguards and procedures on a periodic basis; (b) audit, test, and train

22 its internal personnel regarding any new or modified safeguards and procedures; (c)

23 conduct regular checks and tests on its safeguards and procedures; (d) periodically

24 conduct internal training and education to inform internal personnel how to identify

25 violations when they occur and what to do in response; and (e) meaningfully educate

26 its former and current users about their privacy rights by, without limitation, pre27 recorded statements at the beginning of recorded phones calls, as well as any steps 28 they must take to safeguard such rights.

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1 121. Plaintiffs and the Class Members request the Court enter an order

2 pursuant to California Penal Code Section 637.2 awarding statutory damages of

3 $5,000 to Plaintiffs and each Class Member for each phone call unlawfully recorded

4 without permission of all parties. Additionally, Plaintiffs and the Class seek pre-

5 and-post-judgment interest and attorneys’ fees and costs as allowed by statute. See

6 e.g., Cal. Civ. Proc. Code § 1021.5.

7

SECOND CAUSE OF ACTION

8

Violation of California’s Unfair Competition Law

9

Cal. Bus. & Prof. Code §§ 17200, et seq.

10

(On Behalf of Plaintiffs Individually and the Class)

11 122. Plaintiffs and Class Members incorporate the above allegations by

12 reference.

13 123. California’s Unfair Competition Law (“UCL”) prohibits unfair 14 competition, defined as “any unlawful, unfair or fraudulent business act or practice 15 and unfair, deceptive, untrue or misleading advertising and any act prohibited by 16 [California’s False Advertising Law].” Cal. Bus. & Prof. Code § 17200. 17 124. Defendant willfully violated, and continues to violate, the “unlawful” 18 prong of the UCL by violating the California Invasion of Privacy Act, Cal. Penal 19 Code § 636, and other applicable statutes and laws alleged herein. 20 125. Defendant willfully violated, and continues to violate, the “fraudulent” 21 prong of the UCL through misrepresentations, omissions, and non-disclosures which 22 are false, misleading, and have a tendency to deceive, and did deceive, Plaintiffs, 23 Class Members, and the general public, as detailed herein. 24 126. Defendant willfully violated, and continues to violate, the “unfair”

25 prong of the UCL by gaining unjust profits from the surreptitious eavesdropping on

26 and recording and dissemination of Plaintiffs’ and Class Members’ private attorney27 client phone calls without their permission or knowledge and in violation of their 28 statutorily protected privacy rights.

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1 127. The acts, omissions, misrepresentations, and non-disclosures of 2 Defendant, as described herein, further constitutes “unfair” business acts and 3 practices under the UCL in that Defendant’s conduct offends public policy against 4 invasion of privacy and seeks to profit and capitalize on the need for attorneys and 5 their clients’ for timely, private, and confidential exchange of information and full, 6 frank, and informed advice. 7 128. Plaintiffs and Class Members would not have paid for and used the 8 Securus telephone system for private and privileged phone conversations as they did, 9 or would not have paid as much for them, had they known the true facts about the 10 eavesdropping and recording. 11 129. Neither Plaintiffs nor the Class Members did discover, or could have 12 discovered with any amount of reasonable diligence, the true facts regarding Securus’ 13 recording of their private attorney-client calls until March 3, 2016 when approximately 14 2,330 emails between the Sheriff’s office and Securus’ were published in response to 15 a California Public Records Act request. Plaintiffs and the Class Members were 16 ignorant of the true facts regarding Securus’ recording of their private attorney-client 17 calls, and lacked the ability to have earlier discovered the true facts, until March 3, 18 2016 when the emails were published. Discovery of the true facts did not actually 19 occur, and could not have occurred, until after any applicable statutes of limitation, 20 including the four-year statute of limitations for unfair competition law and illegal 21 business practices. 22 130. As a direct and proximate result of Defendant’s unlawful, unfair, and 23 fraudulent business practices, Plaintiffs and putative Class Members have suffered 24 injury, including but not limited to, monetary loss in connection with purchases of 25 services they would not have purchased absent Defendant’s unlawful conduct and 26 false and/or misleading representations and omissions, as well as invasion of their 27 statutorily protected privacy rights. 28
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1 131. Accordingly, Plaintiffs and the Attorney Class Members and Current 2 Detainee Class Members are entitled to, and hereby seek, an order of this Court 3 enjoining Defendant from continuing to conduct business through unlawful, unfair, 4 and/or fraudulent acts and practices, and to commence a corrective advertising 5 campaign pursuant to Section 17203 of the UCL. 6 132. Plaintiffs and Class Members are further entitled to, and hereby seek an 7 order for disgorgement and restitution of all monies acquired from the sales of the 8 Securus’ services which were unjustly acquired through acts of unlawful, unfair, 9 and/or fraudulent competition by Defendant, as well as any other further equitable 10 relief this Court may deem necessary, just, and proper under the circumstances. 11 Additionally, Plaintiffs and the Class seek pre-and-post judgment interest and

12 attorneys’ fees and costs as allowed by statute. See e.g., Cal. Civ. Proc. Code §

13 1021.5.

14

THIRD CAUSE OF ACTION

15

Fraudulent Concealment/Intentional Omission of Material Facts

16

Cal. Civ. Code §§ 1709, 1710(3)

17

(On behalf of Plaintiffs Individually and the Class)

18

133. Plaintiffs and Class Members incorporate by reference the foregoing

19 allegations.

20 134. California Civil Code Section 1709 provides that “[o]ne who willfully

21 deceives another with intent to induce him to alter his position to his injury or risk,

22 is liable for any damage which he thereby suffers.” “Deceit,” within the meaning of

23 Section 1709, includes “[t]he suppression of a fact, by one who is bound to disclose

24 it, or who gives information of other facts which are likely to mislead for want of

25 communication of that fact.” Cal. Civ. Code § 1710(3).

26 135. Securus intentionally and knowingly concealed material facts from 27 Plaintiffs and Class Members that were known only to Securus prior to Plaintiffs and 28

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1 Class Members’ purchases and use of the Securus telephone system to make private 2 attorney-client calls. 3 136. Securus intentionally and knowingly concealed the aforementioned 4 material facts from Plaintiffs and Class Members with the intent to induce them to 5 purchase services from and use, and continue to purchase services from and use, the 6 Securus phone system to make private attorney-client calls. 7 137. Neither Plaintiffs nor the Class Members did discover, or could have 8 discovered with any amount of reasonable diligence, the true facts regarding Securus’ 9 recording of their private attorney-client calls until March 3, 2016 when approximately 10 2,330 emails between the Sheriff’s office and Securus’ were published in response to 11 a California Public Records Act request. Plaintiffs and the Class Members were 12 ignorant of the true facts regarding Securus’ recording of their private attorney-client 13 calls, and lacked the ability to have earlier discovered the true facts, until March 3, 14 2016 when the emails were published. Discovery of the true facts did not actually 15 occur, and could not have occurred, until after any applicable statutes of limitation, 16 including the three-year statute of limitations for concealment. 17 138. Securus had, and has, a duty to disclose the concealed information 18 because Plaintiffs and Class Members did not know of the concealed facts prior to 19 purchasing and using the Securus telephone system to make private attorney-client 20 calls, nor could they reasonably be expected to learn or discover such concealed facts 21 prior thereto. Further, Securus does not disclose that it gives access to third parties 22 to eavesdrop on, and listen to the recordings of, private attorney-client phone calls. 23 In fact, it affirmatively represents to the contrary. 24 139. Plaintiffs and Class Members would not have purchased or used the 25 Securus phone system to make private attorney-client calls, or would not have paid 26 as much for telephone calls, had they known of the concealed information. 27 140. As a direct and proximate result of Securus’ fraudulent concealment of 28 material facts, Plaintiffs and Class Members have suffered injury, including but not
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1 limited to, monetary loss in connection with purchases of products and services they

2 would not have purchased absent Securus’ fraudulent omissions and non-

3 disclosures, as well as invasion of their statutorily protected privacy rights.

4 141. Accordingly, Plaintiffs and Class Members are entitled to, and hereby

5 seek, actual damages, punitive damages, reasonable attorneys’ fees and costs under

6 Cal. Civ. Proc. Code § 1021.5, pre-and post-judgment interest at the applicable legal

7 rate, and any and all further equitable relief that this Court deems appropriate.

8

FOURTH CAUSE OF ACTION

9

Fraud and Intentional Misrepresentation

10

Cal. Civ. Code §§ 1709, 1710(1)

11

(On behalf of Plaintiffs Individually and the Class)

12 142. Plaintiffs and Class Members incorporate the above allegations by

13 reference. 14 143. California Civil Code Section 1709 provides that “[o]ne who willfully 15 deceives another with intent to induce him to alter his position to his injury or risk, 16 is liable for any damage which he thereby suffers.” 17 144. “Deceit,” within the meaning of Section 1709, includes “[t]he 18 suggestion, as a fact, of that which is not true, by one who does not believe it to be 19 true.” Cal. Civ. Code § 1710(1). 20 145. Securus intentionally and knowingly misrepresented and/or suggested 21 untrue or misleading facts to Plaintiffs and Class Members concerning its telephone 22 services, including but not limited to, the representation to the Sheriff and the public 23 that “if the call is private, . . . there won’t be a recording” and Securus complies with 24 all governing Federal, State, and Local laws.

25 146. On or about May 29, 2012 Richard A. (“Rick”) Smith, President and

26 Chief Executive Office of Securus issued and published its Customer Integrity 27 Pledge to its “Customers — Inmates, Friends, Family, and the Corrections 28 Community” (the “Pledge”) with the intent that they reach an intended audience and

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1 population of which Plaintiffs and the Class were members of (the “Target

2 Audience”). Securus promised the Plaintiffs, the Class, the Corrections Community,

3 and the public it:

4 (a) would be open and honest in all its dealings;

5 (b) would always be truthful in what it can do and what it can't do in

6

responses to Plaintiffs, the Class’, and the public’s questions and

7

requests;

8 (c) would provide the most technologically advanced audio and video

9

communications platform to allow calls with a high level of security;

10

and

11 (d) understood that confidentiality of calls is critical, and would follow all

12

Federal, State, and Local laws in the conduct of its business.

13 147. These statements were and are false and misleading. In fact, Securus is 14 not open and honest, is not truthful about what it can and cannot do, does not have a 15 high level of security in phone calls made by Plaintiffs and the Class, and does not 16 follow all Federal, State, and Local laws. 17 148. Securus has made affirmative false representations and promises that it 18 would not record private attorney-client conversations and communications in its 19 contracts with law enforcement agencies, including without limitation with the San 20 Diego County Sheriff. 21 149. In Section 8.1 of the Agreement With Securus Technologies, Inc. For 22 Detention Facilities for the Sheriffs’ inmate telephone services dated and executed 23 on August 8, 2012, and subsequent amendments (known as contract number 542145 24 and referred to herein as the “Securus Agreement”), Kristopher Alderman, Dennis

25 Reinhold, and Robert Pickens of Securus represented to one or more persons at the

26 Sheriff’s office, including without limitation Frank Clamser and Keith Spears (the 27 manager of the Sheriff’s Contract Division) that Securus, “shall at all times perform 28 its obligations hereunder in compliance with all applicable federal, State, and County

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1 laws and regulations.” This representation by Securus to the Sheriff’s staff members

2 was and is false and misleading.

3 150. In Addendum 4 to RFP #5337 included in the Securus Agreement,

4 Securus confirmed to one or more persons at the Sheriff’s office, including without

5 limitation Captain Clamser and Keith Spears, that calls made from the free

6 telephones in the detention facility booking areas, including calls made to attorneys

7 or other numbers on the “do not record” list were not being recorded. The booking

8 phones became a part of the Securus phone system for the Sheriff’s inmate telephone

9 services. This representation from Securus to the Sheriff’s staff members that

10 attorney-client phone calls made from the booking phones would not be recorded

11 was and is false and misleading.

12 151. On August 29, 2012 Securus Project Manager Becky Hill wrote an

13 email to Captain Clamser of the Sheriff’s office and affirmatively represented to him

14 that,

15

“ . . . if the call is private, even if we set to record from off-hook, there

16

won’t be a recording for a private call….. duh…. L So, a call record for

17

the call but no actual call recording. So, that leaves me at, what can we

18

get you or how can we help you ease the mind of the attorney’s that are

concerned?” [Emphasis added]. 19

20 This representation by Securus to the Sheriff’s staff members was and is false and

21 misleading.

22

152. During the Class Period and up until on or about March 6, 2014, when

23 Plaintiff Elliott and the Attorney Class Members called the San Diego jails, a

24 message played affirmatively stating that the attorney phone calls were not being

25 recorded. Various staff members of the Sheriff’s Investigations Unit, and Sanford

26 Toyen, the Sheriff’s lawyer, affirmatively stated and represented to Plaintiff Elliott

27 and the Attorney Class Members that if an attorney's telephone number was on the

28 private or Do Not Record list in Securus’ system, attorney/client calls would not be

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1 recorded and a message would play to that effect. These representations made by 2 Securus to the Sheriff’s staff, and repeated by the Sheriff’s staff to Plaintiff Elliott 3 and the Attorney Class Members, were and are false and misleading. 4 153. Commencing on about March 6, 2014, Plaintiff Elliott and the Attorney 5 Class Members noticed attorney phone calls to the San Diego jails no longer played 6 a message stating the call is not being recorded. From the period commencing on or 7 about March 6, 2014 to the present, various staff members of the Sheriff’s 8 Detentions Investigations Unit, and Sanford Toyen, the Sheriff’s lawyer, 9 affirmatively reiterated, stated, and represented to Plaintiff Elliott and the Attorney 10 Class Members that the calls are still not being recorded; they just do not play the 11 message anymore. And if a call is being recorded, a message to that effect will play 12 every 45 seconds or so. These representations were made by Securus to the Sheriff’s 13 staff, and were repeated by the Sheriff’s staff to Plaintiff Elliott and the Attorney 14 Class Members, and were and are false and misleading. 15 154. Securus has undertaken the duties and obligations not to record private 16 attorney-client conversations and communications, both directly to users of the 17 Securus system, and in writing in its contracts, responses to requests for proposals, 18 and in emails as set forth above with law enforcement agencies, including without 19 limitation with the San Diego County Sheriff. By contractually, in its promotion and 20 advertising campaign, and in other written communications promising and 21 representing that it won’t record attorney-client phone calls as set forth above, 22 Securus made such fraudulent misrepresentations to the Plaintiffs and the Class with 23 intent and reason to expect that its terms would be repeated and communicated to 24 the Plaintiffs and the Class by the Sheriff and his staff and lawyer(s), other law 25 enforcement, and the correctional community in order to induce them to use and pay 26 for using the Securus telephone communications system as they did. 27 155. On November 12, 2015, Securus issued a press release in response to 28 The Intercept article stating, “It is very important to note that we have found
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1 absolutely no evidence of attorney-client calls that were recorded without the

2 knowledge and consent of those parties. Our calling systems include multiple

3 safeguards to prevent this from occurring. Attorneys are able to register their

4 numbers to exempt them from the recording that is standard for other inmate calls.”

5 These statements were and are false and misleading.

6 156. On November 13, 2015, Securus issued a press release stating:

7

(a)

“Despite allegations from The Intercept and other parties, we have seen

8

no evidence to date of any attorney-client privileged communications

9

that were recorded in error;

10

(b) Data about the time and phone numbers of a call are generated for

11

virtually every call that is placed in the U.S.;

12 (c) Our calling systems include multiple safeguards to prevent attorney-

13

client recordings from occurring. Licensed attorneys are able to register

14

their numbers or a specific call to exempt them from recording;

15

(d) . . . we have seen no evidence to date of recorded calls that would fall

16

under that category. Without direct access to the stolen information,

Securus cannot confirm whether any such recorded calls exist; and

17

18

(e)

Securus does not sell call recordings or information to our law

enforcement or correctional customers or anyone else. We record calls

19

and provide forensic software to our customers based on the

20

stipulations of our service contracts and in accordance with federal,

21

state and local laws. Retention of these records is also conducted

22

according to laws in various jurisdictions.”

23 These statements were and are false and misleading.

24

157. Specifically, and without limitation, Securus’ sells access to call

25 recordings and information to law enforcement and correction customers and others

26 through its “THREADS” system.1 Specifically, in connection with its THREADS

27 1 http://www.securustechnologies.com/solutions/investigative-solutions/investigation/securus28 threads and the “Download Agreement“ link thereon (last visited November 6, 2016)

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1 system, Securus states to the law enforcement and corrections community on its

2 website that,

3

“Traditionally, communications data available for analysis by corrections

4

and law enforcement has been limited to a specific facility or single

5

investigator. This data typically resided on someone's computer or in

software that only a few agents could use. This limitation caused delays or 6
even hindered an investigation. Now, nationwide, more than 400 law

7

enforcement officers are using THREADS investigative software to

8

uncover focused leads based on their targets/suspects. The THREADS

9 database includes the following and continues to grow every day: More

10

than 600,000 people with billing name and address (not incarcerated); More

11

than 950,000 inmates; More than 1,900 correctional facilities; and More

than 100,000,000 call records between inmates and called parties.”2

12

13

158. Securus further states, without limitation, in connection with its

14 THREADS system that,

15

“The THREADS platform brings to market a nationwide, investigative

16

community that bridges the gap between law enforcement agencies and

correctional facilities. THREADS allows investigators to reach from coast 17
to coast to uncover focused leads in a matter of seconds. The data available

18

for analysis includes that of any corrections facility enrolled in our

19

nationwide community and residing on SCP” and “The THREADS

20

platform takes full advantage of this vast amount of data to provide a

21

centralized, nationwide system producing actionable intelligence and focused leads immediately upon install to investigators from coast to coast.3

22

23

159. Securus also represents to the law enforcement and corrections

24 community on its website that the THREADS system can “Customize information 25 and reporting to filter out irrelevant calls, such as girlfriends or legal counsel.”3

26 27 2 Id.

28 3 Id.

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1 160. Securus financial performance depends on the number and length of 2 phone calls made on its system. Securus makes money when the call is connected, 3 regardless of how long it lasts, and receives more revenue the longer the call lasts. 4 161. Securus’ claims about the high level of security, its technological 5 sophistication, the capabilities of its system, that it does not sell recorded call 6 information, and representations to the Plaintiffs and the Class that attorney-client 7 phone calls will not be recorded (the “Technology Promotional Claims”) has been 8 the heart and soul of its advertising and promotional campaign and brand used to 9 drive the use and growth of its telecommunications system. Since January 1, 2008 10 and through the Class Period, the Technology Promotional Claims have been touted 11 to not only Plaintiffs, the Class, and the Target Audience, but also its venture capital 12 and debt financiers to drive its enterprise value. 13 162. Securus has effectively so branded itself by its Technology Promotional 14 Claims as to be married to them. Securus is so married to its Technology Promotional 15 Claims, they are so core, so central, so important, and so material to Securus’ brand, 16 that it could not falsely make them without being aware that they are false. 17 163. Securus made the foregoing affirmative misrepresentations to the 18 Target Audience with reason to expect that it be repeated and acted upon by 19 Plaintiffs and the Class. When Defendant contracted with the San Diego County 20 Sheriff, it represented calls between detainees and attorneys placed on the “Do Not 21 Record” list would not be recorded and that its calling system would prevent 22 attorney-client recordings from occurring, and it fully expected and knew that the 23 misrepresentation would be repeated to the Plaintiffs and the Class. 24 164. Securus made the foregoing affirmative misrepresentations to 25 Plaintiffs, the Class, and the Target Audience class of persons with an intent to 26 deceive everyone in that class. 27 165. Securus’ representations are false and misleading because, without 28 limitation, Securus was not open and honest in its dealings with Plaintiffs and the
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1 Class; was not truthful about what it could and could not do in connection with its 2 system and recording and the “Do Not Record” representation; did not allow calls 3 by Plaintiffs and the Class with a high level of security; and does not follow all 4 federal, state, and local laws because it does in fact record attorney-client phone calls 5 and track, monitor, record, and disclose Plaintiffs’ and Class Members’ phone calls 6 to third parties for financial gain without their informed consent or knowledge, and 7 in violation of their statutorily protected privacy rights. 8 166. Securus statements and representations were, and are, false and 9 misleading because Securus expressly knew at the time it issued its November, 2015 10 press release that it had extensive evidence of its recording of attorney-client phone 11 calls. 12 167. Securus knew that its representations and suggestions were false and/or 13 misleading when made, or made the representations and suggestions recklessly and 14 without regard for their truth. 15 168. Securus intentionally and knowingly misrepresented and/or suggested 16 the aforementioned untrue or misleading facts to Plaintiffs, Class Members, and the 17 Target Audience with the intent to induce them to purchase and use the Securus 18 telephone system. Securus’ knowing and intentional misrepresentation in its 19 Technology Promotional Claims were part of a core, central, widespread, pervasive, 20 nationwide, and decade(s) long advertising campaign. 21 169. Securus made the foregoing fraudulent misrepresentations to the 22 Plaintiffs, the Class, and the Target Audience with intent and reason to expect that 23 its terms would be repeated and communicated to the Plaintiffs, the Class, and the 24 Target Audience in order to induce them to use and pay for using the Securus 25 telephone communications system as they did. 26 170. Plaintiffs and the Class acted in justifiable reliance upon the foregoing 27 fraudulent misrepresentations in using and paying for using the Securus telephone 28 communications system as they did.
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1 171. Plaintiffs and Class Members would not have purchased the Securus 2 products and services, or would not have paid as much for them, had they known the 3 truth about Securus’ violation of their statutorily protected privacy rights. 4 172. Neither Plaintiffs nor the Class Members did, or could have discovered 5 with any amount of reasonable diligence, the true facts regarding Securus’ recording 6 of their private attorney-client calls until March 3, 2016 when approximately 2,330 7 emails between the Sheriff’s office and Securus’ were published in response to a 8 California Public Records Act request. Plaintiffs and the Class Members were 9 ignorant of the true facts regarding Securus’ recording of their private attorney-client 10 calls, and lacked the ability to have earlier discovered the true facts, until March 3, 11 2016 when the emails were published. Discovery of the true facts did not actually

12 occur, and could not have occurred, until after any applicable statutes of limitation,

13 including the three-year statute of limitations for fraud.

14 173. As a direct and proximate result of Defendant Securus’ intentional

15 misrepresentations, Plaintiffs and Class Members have suffered injury, including but

16 not limited to, monetary loss in connection with purchases of products and services

17 they would not have purchased absent Securus’ false and/or misleading

18 representations, as well as invasion of their statutorily protected privacy rights.

19 174. Accordingly, Plaintiffs and Class Members are entitled to, and hereby

20 seek, actual damages, punitive damages, reasonable attorneys’ fees and costs under

21 Cal. Civ. Proc. Code § 1021.5, pre-and post-judgment interest at the applicable legal

22 rate, and any and all further equitable relief that this Court deems appropriate.

23

FIFTH CAUSE OF ACTION

24

Negligence

25

(On Behalf of Plaintiffs Individually and the Class)

26

175. Plaintiffs and the Class Members incorporate the above allegations by

27 reference.

28

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1

176. In providing telecommunications products and services to Plaintiffs and

2 the Class, Securus owed a duty to exercise reasonable care in safeguarding and

3 protecting private, confidential, and privileged attorney-client phone calls. This duty

4 included, among other things, taking reasonable measures to implement and

5 maintain reasonable procedures to protect the rights of Class Members in compliance

6 with applicable law, including, but not limited to procedures and policies to: (a)

7 supervise, restrict, limit, and determine: (i) whether any conversation between a

8 detainee and his or her attorney is, or was, being recorded; (ii) whether all parties had

9 given their permission to have their conversation recorded; and (iii) whether the

10 conversation is being, or had in fact been, recorded; and (b) how long after discovery

11 of any recordings, whether they were lawfully obtained or not, the list of calls and the

12 recordings themselves should be retained before being “purged” or destroyed and

13 notice given to the injured persons; (c) when and how to secure and encrypt any

14 recordings of illegal calls pending notice and destruction; (d) when and how to notify

15 Plaintiffs and the Class Members of the unlawful recordings; and (e) under what

16 circumstances the recordings, whether lawfully obtained or not, may be sold,

17 transferred, reviewed, disclosed, or released to third parties.

18

177. In providing services to the Plaintiffs and the Class, Securus owed them

19 a duty to exercise reasonable care, without limitation in: (a) obtaining permission to

20 record their conversations; (b) adequately securing the privacy of attorney-client

21 telephone calls and the privilege applicable to such calls; and (c) protecting the

22 content of Plaintiffs and the Class’ attorney-client phone calls from unauthorized

23 eavesdropping, listening in, recording, storage, disclosure, and access and use.

24

178. Securus’ systems, policies, and procedures for handling the private,

25 confidential, and privileged information of attorney-client phone calls were intended

26 to, and did, affect Plaintiffs and the Class. Securus was aware that by providing 27 phone products and services to the attorney-client users of its systems, it had a 28 responsibility to take reasonable measures to protect the phone calls from being

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1 eavesdropped on or recorded and not to provide access to law enforcement,

2 prosecutors, or other third parties without restriction.

3

179. The duty Securus owed to Plaintiffs and Class Members to protect their

4 private, confidential, and privileged attorney-client phone calls is also underscored

5 by the California Invasion of Privacy Act, which recognizes the importance of

6 maintaining the confidentiality of attorney-client phone calls and was established to

7 protect individuals from improper recording of such calls.

8

180. Additionally, Securus had a duty to timely disclose to and/or warn

9 Plaintiffs and Class Members that their private, confidential, and privileged calls

10 were, had been, or were reasonably believed to have been recorded. Timely

11 disclosure was necessary and appropriate so that Plaintiffs and Class Members could

12 have, among other things, timely pursue and exhaust available remedies, and

13 undertake appropriate measures to avoid such recordings and prevent or mitigate the

14 risk of unlawful recording and disclosure.

15

181. There is a very close connection between Securus’ failure to take

16 reasonable measures to protect attorney-client users of its systems and the injury to

17 Plaintiffs and the Class. When individuals have their private, confidential, and

18 privileged attorney-client phone calls recorded they: (a) are at risk for improper use

19 of such recordings by law enforcement, prosecutors, and other parties, and of having

20 their privacy rights violated; and (b) need to incur additional costs and expense to

21 protect themselves from such invasions of privacy.

22

182. Securus is legally responsible for such unlawful eavesdropping and

23 recordings and the violations of the privacy rights of the attorney-client users of its

24 service because it failed to take reasonable privacy and recording measures. If

25 Securus had taken reasonable privacy and recording security measures, private,

26 confidential, and privileged phone calls of attorney-client users of Securus’ products 27 and services would not have been eavesdropped on or recorded. 28

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1

183. The policy of preventing future harm weighs in favor of finding a

2 special relationship between Securus and the Class. Securus’ attorney-client users

3 of its telecommunications products and services count on Securus to keep their

4 attorney-client phone calls private. Indeed, they are captive users. If Defendant is

5 not held accountable for failing to take reasonable privacy security and recording

6 measures to protect the attorney-client users of their system, they will not take the

7 steps that are necessary to protect against future invasions of privacy and rights.

8

184. It was foreseeable that if Securus did not take reasonable security

9 measures, the private, confidential, and privileged attorney-client phone calls of

10 Plaintiffs and Members of the Class would be recorded and unlawfully disclosed.

11 Securus should have known to take precautions to secure such attorney-client calls.

12

185. Securus breached its duty to exercise reasonable care in protecting the

13 private attorney-client phone calls of Plaintiffs and the Class by, without limitation:

14 (a) failing to implement and maintain adequate recording and security measures to

15 safeguard phone calls; (b) failing to monitor its systems to identify unlawful activity;

16 (c) allowing unauthorized recording and access to the private attorney-client phone

17 calls of Plaintiffs and the Class; (d) “purging” such calls and recordings from its call

18 lists without notice to Plaintiffs and the Class; and (e) failing to otherwise prevent

19 unauthorized eavesdropping, recording, listening to, or disclosure of such calls.

20

186. Securus breached its duty to timely warn or notify Plaintiffs and the

21 Class about the unlawful recordings. Securus has failed to issue any warnings to its

22 current and former attorney-client users of its systems affected by the recordings.

23 Additionally, Securus was, or should have been, aware of the unlawful recordings

24 as early as July 10, 2012.

25 187. Neither Plaintiffs nor the Class Members did discover, or could have

26 discovered with any amount of reasonable diligence, the true facts regarding Securus’ 27 recording of their private attorney-client calls until March 3, 2016 when approximately 28 2,330 emails between the Sheriff’s office and Securus’ were published in response to

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1 a California Public Records Act request. Plaintiffs and the Class Members were

2 ignorant of the true facts regarding Securus’ recording of their private attorney-client

3 calls, and lacked the ability to have earlier discovered the true facts, until March 3,

4 2016 when the emails were published. Discovery of the true facts did not actually

5 occur, and could not have occurred, until after any applicable statutes of limitation,

6 including the two-year statute of limitations for negligence.

7

188. But for Securus’ failure to implement and maintain adequate measures

8 to protect the privacy and confidentiality of the Plaintiffs and Class Members’

9 attorney-client calls and conversations, and its failure to monitor its systems to

10 identify unlawful recordings and suspicious activity, the private recording of

11 Plaintiffs and Class Members would not have been made, and the Attorney Class

12 and Current Detainee Class would not be at a heightened risk of unlawful recordings

13 in the future.

14

189. Securus’ negligence was a substantial factor in causing harm to

15 Plaintiffs and Class Members and in violating their CIPA and common law privacy

16 rights.

17 190. As a direct and proximate cause and result of Securus’ failure to

18 exercise reasonable care and use reasonable measures to safeguard the private,

19 confidential, and privileged nature of the recorded attorney-client phone calls, such

20 calls of Plaintiffs and the Class attorney-client users of the Securus

21 telecommunications services were eavesdropped on, listened to, recorded, stored,

22 and disclosed, such that unauthorized individuals could use the information to

23 compromise Plaintiffs privacy rights. Plaintiffs and the Class face a heightened risk

24 of such invasions of privacy in the future.

25

191. Members of the Class have also suffered economic damages, including

26 incurring additional legal costs and expenses and charges for phone calls they would 27 not have otherwise incurred and paid. 28

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1

192. Neither Plaintiffs nor other Class Members contributed to the unlawful

2 conduct set forth herein, nor did they contribute to Securus’ unlawful eavesdropping,

3 listening to, recording, or storage of attorney-client phone calls, nor to the

4 insufficient measures to safeguard the private nature of such calls and conversations.

5

193. Plaintiffs and the Class seek compensatory damages and punitive

6 damages with pre-and-post judgment interest, the costs of suit, attorneys’ fees, and

7 other and further relief as this Court deems just and proper.

8

SIXTH CAUSE OF ACTION

9

Unjust Enrichment

10

(On Behalf of Plaintiffs Individually and the Class)

11 194. Plaintiffs and the Class Members incorporate the above allegations by

12 reference.

13 195. “Under California law, the elements of unjust enrichment are: (1) 14 receipt of a benefit; and (2) unjust retention of the benefit at the expense of another.” 15 Valencia v. Volkswagen Grp. of Am. Inc, No. 15-CV-00887-HSG, 2015 WL 16 4747533, at *8 (N.D. Cal. Aug. 11, 2015). See also, Munoz v. MacMillan, 195 Cal. 17 App. 4th 648, 661 (2011) (“Common law principles of restitution require a party to 18 return a benefit when the retention of such benefit would unjustly enrich the 19 recipient; a typical cause of action involving such remedy is ‘quasi-contract.”) 20 196. “When a plaintiff alleges unjust enrichment, a court may construe the 21 cause of action as a quasi-contract claim seeking restitution.” Astiana v. Hain 22 Celestial Grp., Inc., 783 F.3d 753, 762 (9th Cir. 2015). “Whether termed unjust 23 enrichment, quasi-contract, or quantum meruit, the equitable remedy of restitution 24 when unjust enrichment has occurred “is an obligation (not a true contract [citation])

25 created by the law without regard to the intention of the parties, and is designed to

26 restore the aggrieved party to his or her former position by return of the thing or its 27 equivalent in money.” F.D.I.C. v. Dintino, 167 Cal. App. 4th 333, 346 (2008). 28

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1 197. Plaintiffs and Class Members conferred non-gratuitous benefits upon 2 Defendant by paying for recordings Defendant could resell to law enforcement 3 customers and profits derived therefrom. 4 198. Defendant accepted or retained such benefits with knowledge that 5 Plaintiffs and Class Members did not give permission to have their personal 6 information disseminated to third parties for financial gain. Defendant has been 7 unjustly enriched in retaining the revenues from Plaintiffs and Class Members’ 8 purchases of the Securus’ phone services, which retention under these circumstances 9 is unjust and inequitable because Defendant misrepresented the facts concerning the 10 private nature of their phone calls and recording thereof without their permission or 11 knowledge. 12 199. Plaintiffs and Class Members would not have purchased phone 13 services had they known that Securus was recording, monitoring, collecting, and 14 disseminating their private phone calls to third parties, including law enforcement 15 officials and prosecutors, for financial gain without their permission or knowledge, 16 and in violation of their statutorily protected privacy rights 17 200. Neither Plaintiffs nor the Class Members did discover, or could have 18 discovered with any amount of reasonable diligence, the true facts regarding Securus’ 19 recording of their private attorney-client calls until March 3, 2016 when approximately 20 2,330 emails between the Sheriff’s office and Securus’ were published in response to 21 a California Public Records Act request. Plaintiffs and the Class Members were 22 ignorant of the true facts regarding Securus’ recording of their private attorney-client 23 calls, and lacked the ability to have earlier discovered the true facts, until March 3, 24 2016 when the emails were published. Discovery of the true facts did not actually 25 occur, and could not have occurred, until after any applicable statutes of limitation, 26 including the four-year statute of limitations for unjust enrichment. 27 201. As a direct and proximate result of Defendant’s false and/or misleading 28 representations, assertions of fact, omissions of material fact, non-disclosures, and
- 49 Romero et al v. Securus Technologies, Inc. No. 16-cv-1283
THIRD AMENDED COMPLAINT

Case 3:16-cv-01283-JM-MDD Document 30 Filed 02/08/17 PageID.1218 Page 51 of 52

1 illegal listening in on, recording, collecting, and disseminating private telephone 2 calls, Plaintiffs and Class Members have suffered concrete harm and injury, 3 including, but not limited to, monetary loss in connection with purchases of services, 4 and an unconstitutional and illegal intrusion and invasion of their lawfully protected 5 rights of privacy and effective assistance of counsel which they would otherwise not 6 have purchased absent Defendant’s unlawful conduct, as alleged herein. 7 202. Defendant’s retention of the non-gratuitous benefits conferred on them 8 by Plaintiffs and Class Members would be unjust and inequitable. Plaintiffs and Class 9 Members are entitled to seek disgorgement and restitution of wrongful profits, 10 revenue, and benefits conferred upon Defendant in a manner established by this Court. 11 203. Plaintiffs and Class Members are further entitled to, and hereby seek,

12 reasonable attorneys’ fees and costs under Cal. Civ. Proc. Code § 1021.5, pre-and

13 post-judgment interest at the applicable legal rate, as well as any and all further

14 equitable relief that this Court deems appropriate.

15

PRAYER FOR RELIEF

16

WHEREFORE, Plaintiffs, individually and on behalf of the proposed Class,

17 request the Court:

18

a. Certify this case as a Class action on behalf of the Class defined above,

19 appoint Juan Romero, Frank Tiscareno, and Kenneth Elliott as Class representatives,

20 and appoint the Law Offices of Ronald A. Marron, APLC and Robert Teel as Class

21 counsel;

22

b. Award declaratory and other equitable relief as is necessary to protect

23 the interests of Plaintiffs and Class Members;

24

c. Award injunctive relief as is necessary to protect the interests of

25 Plaintiffs and Attorney Class Members and Current Detainee Class Members;

26

d. Award restitution and damages to Plaintiffs and Class Members in an

27 amount to be determined at trial;

28

e. Order disgorgement of Defendant’s unjustly acquired revenue, profits,

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1 and other benefits resulting from their unlawful conduct for the benefit of Plaintiffs

2 and Class Members in an equitable and efficient manner determined by the Court;

3

f. Order the imposition of a constructive trust upon Defendant such that its

4 enrichment, benefit, and ill-gotten gains may be allocated and distributed equitably by

5 the Court to and for the benefit of Plaintiffs and the Class Members.

6

g. Award Plaintiffs and Class Members their reasonable litigation

7 expenses and attorneys’ fees;

8

h. Award Plaintiffs and Class Members pre- and post-judgment interest to

9 the extent allowable; and

10

i. Award such other and further relief as equity and justice may require.

11

JURY DEMAND

12 Plaintiffs hereby demand a trial by jury on all issues so triable.

13 Dated: February 8, 2017 14 15 16 17 18 19

/s/ Robert L. Teel By: Robert L. Teel LAW OFFICE OF ROBERT L. TEEL ROBERT L. TEEL lawoffice@rlteel.com 207 Anthes Ave., Suite 201 Langley, Washington 98260 Telephone: (866) 833-5529 Facsimile: (855) 609-6911

20

LAW OFFICES OF RONALD A.

21

MARRON, APLC

RONALD A. MARRON

22

ALEXIS WOOD

23

KAS GALLUCCI

WILLIAM B. RICHARDS, JR.

24

651 Arroyo Drive

25

San Diego, California 92103

26

Telephone: (619) 696-9006

Facsimile: (619) 564-6665

27

28

Attorneys for Plaintiffs and the Proposed Class

- 51 -

Romero et al v. Securus Technologies, Inc. No. 16-cv-1283 THIRD AMENDED COMPLAINT

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 JUAN ROMERO, FRANK TISCARENO,

12

and KENNETH ELLIOTT, on behalf of themselves, and all others similarly

13 situated,

14

Plaintiffs,

15 v.

Case No.: 16cv1283 JM (MDD)
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PORTIONS OF PLAINTIFFS’ THIRD AMENDED COMPLAINT

16 SECURUS TECHNOLOGIES, INC.,

17

Defendant.

18

19

Defendant Securus Technologies moves to dismiss portions of the fourth cause of

20 action in the third amended class action complaint (“TAC”) of Plaintiffs Juan Romero,

21 Frank Tiscareno, and Kenneth Elliott. Specifically, Defendant seeks dismissal of

22 Plaintiffs’ allegations of fraud based on statements Defendant made to the San Diego

23 County Sheriff’s Office (“the Sheriff”). (Doc. No. 31.) Plaintiffs oppose the motion.

24 The court finds the matter appropriate for decision without oral argument pursuant to

25 Local Rule 7.1(d)(1) and, for the following reasons, grants Defendant’s motion.

26

BACKGROUND

27

Plaintiffs are two former inmates and a criminal defense attorney, all of whom

28 used Defendant’s telephone systems to make calls to and from certain correctional

1 16cv1283 JM (MDD)

1 facilities in California.

2

In July 2016, Plaintiffs filed a first amended complaint against Defendant alleging

3 seven causes of action: (1) violation of the California Invasion of Privacy Act, Cal. Penal

4 Code § 636; (2) violation of California Business & Professions Code section 17200; (3)

5 fraudulent concealment/omission; (4) fraudulent misrepresentation; (5) negligence;

6 (6) unjust enrichment; and (7) conversion. (Doc. No. 8.) All seven counts stemmed from

7 Defendant’s allegedly improper recording of attorney-client calls.

8

Defendant filed a motion to dismiss the first amended complaint, which the court

9 granted in part and denied in part. (Doc. No. 21.) The court dismissed the seventh cause

10 of action without leave to amend and dismissed the fourth cause of action with leave to

11 amend. The court denied the remainder of Defendant’s motion.

12

Plaintiffs amended the fourth cause of action and filed a second amended

13 complaint in November 2016. Defendant filed another motion to dismiss. The court

14 granted the motion in part and denied it in part, dismissing Plaintiffs’ claim that related to

15 information conveyed to the Sheriff. (Doc. No. 29.) The court invited Plaintiffs to

16 further amend their complaint if they could satisfy federal pleading standards and

17 California law in alleging specific misrepresentations that Defendant made to the Sheriff.

18

Plaintiffs accepted the court’s invitation and filed the TAC on February 8, 2017.

19 (Doc. No. 30.) Defendant now moves, once again, to dismiss the portion of Plaintiffs’

20 fourth cause of action that relates to statements to the Sheriff.

21

LEGAL STANDARDS

22

A Rule 12(b)(6) motion to dismiss for failure to state a claim challenges the legal

23 sufficiency of the pleadings. Generally, to overcome such a motion, the complaint must

24 contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

25 Corp. v. Twombly, 550 U.S. 544, 570 (2007). Federal Rule of Civil Procedure 9(b)

26 provides, however, that “[i]n alleging fraud or mistake, a party must state with

27 particularity the circumstances constituting fraud or mistake.” Although malice, intent,

28 knowledge, and other conditions of a person’s mind may be alleged generally under Rule

2 16cv1283 JM (MDD)

1 9(b), “a plaintiff alleging fraud must still allege facts from which it can be inferred that

2 the defendant’s representations or assurances were false when made.” Am. Shooting

3 Ctr., Inc. v. Secfor Int’l, 2015 WL 1914924, at *6 (S.D. Cal. Apr. 27, 2015) (citing

4 Electric Prop. East, LLC v. Marcus & Millichap Co., 751 F.3d 990 (9th Cir. 2014)). In

5 other words, “although the language of Rule 9 poses no barrier in itself to general

6 pleading of fraudulent [state of mind], Twombly . . . must still be applied to test

7 complaints that contain claims of fraud.” Eclectic Properties, 751 F.3d at 995 n.5 (9th

8 Cir. 2014).

9

DISCUSSION

10

In California, the elements of fraud are: “(1) a misrepresentation (false

11 representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter);

12 (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting

13 damage.” Robinson Helicopter Co. v. Dana Corp., 34 Cal. 4th 979, 990 (2004). In

14 addition, the principle of indirect fraud provides “that a defendant cannot escape

15 liability if he or she makes a representation to one person while intending or having

16 reason to expect that it will be repeated to and acted upon by the plaintiff (or someone in

17 the class of persons of which plaintiff is a member).” Shapiro v. Sutherland, 64 Cal.

18 App. 4th 1534, 1548 (1998). Employing this principle, Plaintiffs allege that Defendant

19 made three fraudulent representations to the Sheriff.

20

First, Plaintiffs point to section 8.1 of an August 2012 written agreement between

21 the Sheriff and Defendant in which “Kristopher Alderman, Dennis Reinhold, and Robert

22 Pickens of Securus represented to one or more persons at the Sheriff’s office, including

23 without limitation Frank Clamser and Keith Spears (the manager of the Sheriff’s Contract

24 Division) that Securus, ‘shall at all times perform its obligations hereunder in compliance

25 with all applicable federal, State, and County laws and regulations.’” (Doc. No. 30 at 37–

26

27

28

3 16cv1283 JM (MDD)

1 38, ¶ 149.)1 Second, Plaintiffs point to an addendum to that same August 2012

2 agreement, in which “Securus confirmed to one or more persons at the Sheriff’s office,

3 including without limitation Captain Clamser and Keith Spears, that calls made from the

4 free telephones in the detention facility booking areas, including calls made to attorneys

5 or other numbers on the ‘do not record’ list[,] were not being recorded.” (Id. at 38, ¶

6 150.) Third, Plaintiffs point to an August 2012 email in which Securus Project Manager

7 Becky Hill told Captain Clamser that “if the call is private, even if we set to record from

8 off-hook, there won’t be a recording for a private call . . . duh . . . L So, a call record for

9 the call but no actual call recording. So, that leaves me at, what can we get you or how

10 can we help you ease the mind of the attorney’s that are concerned?” (Id. ¶ 151 (all

11 punctuation and grammar in original).)

12

Later in the TAC, Plaintiffs allege that Securus “knew that its representations and

13 suggestions were false and/or misleading when made, or made the representations and

14 suggestions recklessly and without regard for their truth.” (Id. at 43, ¶ 167.) Plaintiffs

15 provide scant factual support for this allegation of knowledge, however. They state that

16 an internet article reported that improper recording began in December 2011, (Doc. Nos.

17 30 at 7, ¶ 22; 33 at 10 n.4), but they provide nothing to indicate that Defendant

18 employees Kristopher Alderman, Dennis Reinhold, Robert Pickens, and Becky Hill had

19 any knowledge of those improper recordings in August 2012, much less enough specific

20 knowledge to make their representations to the Sheriff knowingly false when made.2

21

22 1 In addition to the reasons discussed below, the allegation regarding section 8.1 is also
23 subject to dismissal because there is no “special reason to expect” that a pledge to follow all laws, Shapiro, 64 Cal. App. 4th at 1548, included in a contract between Defendant and
24 the Sheriff, would be communicated by the Sheriff to others. Yet this requirement must
25 be met to successfully plead indirect fraud. 2 The court acknowledges that in the last go-round on this cause of action, it was willing
26 to accept an identically worded allegation of knowledge with respect to Defendant’s CEO
27 Richard A. Smith. (See Doc. No. 29 at 4.) Resolving all inferences in Plaintiffs’ favor, and in light of Plaintiffs’ claim that the improper recording began in December 2011, the
28 court determined it was plausible that the CEO of the company would know about the

4

16cv1283 JM (MDD)

1 Instead, the TAC indicates in painstaking fashion that those Securus employees who

2 interacted with the Sheriff were put on notice of the improper recordings in the spring

3 and summer of 2014—nearly two years later. (See Doc. No. 30 at 11–17.)

4

In sum, the TAC “alleges facts that support—at best—a possible basis to believe”

5 that Kristopher Alderman, Dennis Reinhold, Robert Pickens, and Becky Hill knew their

6 representations were false when made, “not a plausible one.” Eclectic Properties, 751

7 F.3d at 999 n.8. Because a mere possibility based on speculation alone does not meet

8 Twombly’s requirements, the court dismisses Plaintiffs’ claim for fraud based on

9 Defendant’s statements to the Sheriff.

10

CONCLUSION

11

For the foregoing reasons, the court grants Defendant’s motion to dismiss. As

12 Plaintiffs have had multiple attempts to adequately plead fraud based on information

13 conveyed to the Sheriff and have not been able to do so, the court’s order is without leave

14 to amend.

15

IT IS SO ORDERED.

16 17 DATED: March 29, 2017
18

JEFFREY T. MILLER United States District Judge

19

20

21

22

23

24

25

26 recordings, and therefore know that his May 2012 “Customer Integrity Pledge” was false
27 when made. Without more factual support, however, the court is not willing to reach the same conclusion with respect to individual, seemingly non-executive-level Securus
28 employees.

5

16cv1283 JM (MDD)

 
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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 JUAN ROMERO, FRANK

Case No.: 16-cv-1283-JM-MDD

12

TISCARENO, and KENNETH ELLIOTT, on behalf of themselves

ORDER DENYING PLAINTIFFS’

13 and all others similarly situated,

MOTION TO EXPEDITE

14

Plaintiffs,

DISCOVERY AND FOR A PRESERVATION ORDER

15 v.

16 SECURUS TECHNOLOGIES, INC., [ECF NO. 32]

17

Defendant.

18

19

Plaintiffs are two former inmates and a criminal defense attorney, all of

20 whom used Defendant’s telephone systems to make calls to and from certain

21 correctional facilities in California. Plaintiffs allege that Defendant recorded

22 a number of attorney-client calls in violation of California law. On May 27,

23 2016, Plaintiffs filed their class action Complaint in this Court asserting

24 federal jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d).

25 (ECF No. 1). A first amended complaint (“FAC”) was filed on July 26, 2016.

26 (Doc. No. 8.) On October 24, 2016, the Court issued an Order granting in

27 part and denying in part Defendant’s Motion to Dismiss. (ECF No. 21). A

1 16-cv-1283-JM-MDD

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1 second amended complaint (“SAC”) was filed on November 7, 2016. (ECF No.

2 22). On January 26, 2017, the Court again granted in part and denied in part

3 Defendant’s Motion to Dismiss. (ECF No. 29). A third amended complaint

4 (“TAC”) was filed on February 8, 2017. (ECF No. 30). Another Motion to

5 Dismiss was filed by Defendant and granted by the Court on March 29, 2017.

6 (ECF No. 37). The TAC is now the operative pleading and was answered by

7 Defendant on April 12, 2017. (ECF No. 41).

8

Before the Court is Plaintiffs’ Motion to Expedite Discovery and for a

9 Preservation Order, filed on March 10, 2017, some ten months after this

10 action was initiated. (ECF No. 32). Defendant responded in opposition on

11 March 31, 2017. (ECF No. 38). Plaintiffs replied on April 7, 2017. (ECF No.

12 39). As provided herein, Plaintiffs’ motion is DENIED.

13

DISCUSSION

14

A. Motion for Preservation Order

15

In considering a motion for an order preserving evidence, the court is to

16 consider:

17

1) The level of concern the court has for the continuing existence and

18

maintenance of the integrity of the evidence in question in the absence of an order directing preservation of the evidence;

19

2) Any irreparable harm likely to result to the party seeking the

20

preservation of the evidence absent an order directing preservation; and

21

3) The capability of an individual, entity, or party to maintain the

22

evidence sought to be preserved.

23 Jardin v. Datallegro, Inc., et al, No. 08-cv-1462, 2008 WL 4104473 *1

24 (September 3, 2008, S.D. Cal.) (citations omitted).

25

Plaintiffs support their motion by referring to an alleged “purge” of

26 certain recordings by Defendant in 2014 at the request of the San Diego

27 Sheriff. The alleged purge occurred years before this case was filed. The

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1 Court is satisfied with Defendant’s assertion that it recognizes and will abide 2 by its preservation obligations. The Court has no concern, based upon this 3 record, for the continuing existence and maintenance of the integrity of the

4 evidence in question. The Motion for an Order of Preservation is DENIED.

5

B. Motion for Expedited Discovery

6

Federal Rule of Civil Procedure 26(d) states:

7

A party may not seek discovery from any source before the parties

8

have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when

9

authorized by these rules, by stipulation, or by court order.

10

In the instant case, Plaintiff may only obtain early discovery by court

11 order. In this Circuit, courts must find “good cause” to determine whether to

12 permit discovery prior to the Rule 26(f) conference. Good cause exists where

13 the need for expedited discovery, in consideration of the administration of

14 justice, outweighs the prejudice to the responding party. See, e.g., Arista

15 Records, LLC v. Does 1–43, 2007 WL 4538697 *1 (S.D. Cal. 2007).

16

Plaintiffs seek an order requiring an independent computer forensic

17 examiner to “examine” all digital storage devices in Defendant’s custody,

18 searching for recordings of calls, restore deleted data and produce such data

19 to Defendant’s counsel, all at Defendant’s expense. This demand would be

20 extraordinary even in the context of normal discovery. As a matter of

21 expedited discovery, it is beyond the pale, absent serious good cause. Here,

22 the asserted need is as a companion to the motion to preserve evidence. As

23 the Court has denied that motion, this motion similarly is DENIED.

24

The Court finds the timing of the instant motion confusing. Based upon

25 the materials provided, Plaintiffs appear to have been aware of the alleged

26 2014 purge of certain recorded calls. Yet, Plaintiffs waited approximately 10

27

3 16-cv-1283-JM-MDD

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1 months after the filing of the Complaint to bring these motions. It is the 2 Court’s experience that motions to preserve and for early discovery typically 3 are brought promptly after the filing of the complaint. The timing of these

4 requests discounts their urgency and their need.

5

CONCLUSION

6

For the foregoing reasons, Plaintiffs’ Motion for Expedited Discovery

7 and an Order Preserving Evidence is DENIED.

8

IT IS SO ORDERED:

9 10 Dated: April 17, 2017

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 JUAN ROMERO, FRANK TISCARENO, and KENNETH
12 ELLIOTT, on behalf of themselves

Case No.: 16-cv-1283-JM-MDD ORDER ON JOINT MOTION FOR

13 and all others similarly situated,

DETERMINATION OF

14

Plaintiffs, DISCOVERY DISPUTE REGARDING DEFENDANT’S

15 v.

RESPONSES TO WRITTEN

16 SECURUS TECHNOLOGIES, INC., DISCOVERY

17

Defendant. [ECF NO. 59]

18

19

Plaintiffs are two former inmates and a criminal defense attorney, all of

20 whom allegedly used Defendant’s telephone systems to make calls to and

21 from certain correctional facilities in California. Plaintiffs are seeking to

22 represent a class of individuals whose calls to or from a “private” number,

23 that is, a number designated to not record, were recorded in violation of

24 California’s Invasion of Privacy Act, Cal. Penal Code §§ 630, et seq. Plaintiffs’

25 Motion for Class Certification was filed on October 10, 2017. (ECF No. 62).

26

Before the Court is the Joint Motion of the parties to determine a

27 discovery dispute filed on September 22, 2017. (ECF No. 59). The Joint

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1 Motion presents Plaintiffs’ motion to compel additional responses from

2 Defendant to certain Interrogatories, Requests for Production (“RFP”) and

3 Requests for Admission (“RFA”).

4

LEGAL STANDARD

5

The Federal Rules of Civil Procedure authorize parties to obtain

6 discovery of “any nonprivileged matter that is relevant to any party’s claim or

7 defense and proportional to the needs of the case . . . .” Fed. R. Civ. P.

8 26(b)(1). “Information within the scope of discovery need not be admissible in

9 evidence to be discoverable.” Id. District courts have broad discretion to

10 limit discovery where the discovery sought is “unreasonably cumulative or

11 duplicative, or can be obtained from some other source that is more

12 convenient, less burdensome, or less expensive.” Fed. R. Civ. P. 26(b)(2)(C).

13

An interrogatory may relate to any matter that may be inquired of

14 under Rule 26(b). Fed. R. Civ. P. 33(a)(2). The responding party must

15 answer each interrogatory by stating the appropriate objection(s) with

16 specificity or, to the extent the interrogatory is not objected to, by

17 “answer[ing] separately and fully in writing under oath.” Rule 33(b). The

18 responding party has the option in certain circumstances to answer an

19 interrogatory by specifying responsive records and making those records

20 available to the interrogating party. Rule 33(d).

21

Similarly, a party may request the production of any document within

22 the scope of Rule 26(b). Fed. R. Civ. P. 34(a). “For each item or category, the

23 response must either state that inspection and related activities will be

24 permitted as requested or state an objection to the request, including the

25 reasons.” Rule 34(b)(2)(B). If the responding party chooses to produce

26 responsive information, rather than allow for inspection, the production must

27 be completed no later than the time specified in the request or another

2 16-cv-1283-JM-MDD

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1 reasonable time specified in the response. Id. An objection must state

2 whether any responsive materials are being withheld on the basis of that

3 objection. Rule 34(b)(2)(C). An objection to part of a request must specify the

4 part and permit inspection or production of the rest. Id. The responding

5 party is responsible for all items in “the responding party’s possession,

6 custody, or control.” Rule 34(a)(1). Actual possession, custody or control is

7 not required. Rather, “[a] party may be ordered to produce a document in the

8 possession of a non-party entity if that party has a legal right to obtain the

9 document or has control over the entity who is in possession of the

10 document.” Soto v. City of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995).

11

Rule 36 of the Federal Rules of Civil Procedure governs requests for

12 admission. The rule allows for a party to serve on another party a written

13 request to admit the truth of matters relating to facts, the application of law

14 to fact or opinions about either and genuineness of described documents.

15 Rule 36(a)(1)(A),(B), Fed. R. Civ. P. The answering party must admit the

16 matter, or “specifically deny it or state in detail why the answering party

17 cannot truthfully admit or deny it.” Rule 36(a)(4). “A denial must fairly

18 respond to the substance of the matter; and when good faith requires that a

19 party qualify an answer or deny only a part of the matter, the answer must

20 specify the part admitted and qualify or deny the rest.” Id. If an answer does

21 not comply with this rule, the court “may order either that the matter is

22 admitted or that an amended answer be served.” Rule 36(a)(6).

23

DISCUSSION

24

A. Interrogatories 1-5 (ECF No. 59-1)

25

Despite its recitation of disfavored boilerplate objections, Defendant

26 ultimately agreed to produce responsive information using the option to

27 produce business records provided at Rule 33(d), Fed. R. Civ. P. (See ECF

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1 No. 59 at 11).1 But, Defendant has refused to produce the responsive records

2 because Plaintiff has not agreed to the terms of a proposed protective order.

3 (Id.).

4

Defendant’s refusal to produce documents on this basis is just plain

5 wrong. Following the failed attempt to achieve agreement on the terms of 6 protective order, Defendant had two options: Produce the requested

7 documents or move the Court for a protective order under Rule 26(c), Fed. R.

8 Civ. P. It was not an option for Defendant to simply withhold production.

9 Rule 26(c)(1) provides that following a failed attempt to reach agreement,

10 “the party from whom discovery is sought may move for a protective order….” 11 Defendant has had ample opportunity to move for a protective order. 12 Defendant’s failure to do so is inexplicable. Consequently, Plaintiff’s motion

13 to compel responses to Interrogatories 1-5 is GRANTED. Defendant must

14 provide its responses within 14 days of this Order.

15

B. Interrogatories 6-8 (ECF No. 59-1)

16

These are contention interrogatories to which Defendant has refused to

17 respond as premature and “misguided.” (ECF No. 59 at 11). Rule 33(a)(2)

18 provides:

19

An interrogatory is not objectionable merely because it asks for an

opinion or contention that relates to fact or the application of law to

20

fact, but the court may order that the interrogatory need be answered

21

until designated discovery is complete, or until a pretrial conference or

some other time. 22

23 Defendant’s reliance on Slavkov v. Fast Water Heaters I, LP, No. 14cv4324-

24 JST, 2015 WL 6648170 (N.D. Cal. Nov. 2, 2015), is misplaced. Although the

25

26

27

1 The Court will cite to the pagination provided by CM/ECF rather than original pagination throughout.

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1 court in Slavkov decided that the contention interrogatories in that case were

2 premature, discovery had barely begun. Id. at *3. Here, the class

3 certification discovery period ended on September 5, 2017, and Defendant

4 shortly will be filing its response to Plaintiffs’ motion for class certification.

5 Plaintiffs’ motion to compel responses to Interrogatories 6-8 is GRANTED.

6 Defendant must provide responses within 14 days of this Order.

7

C. Requests for Production (ECF No. 59-2)

8

At issue are Defendant’s responses to all of the RFPs – Defendant

9 refused to produce any documents because there is no protective order in

10 place in this case. As discussed above, Defendant’s position that it cannot

11 produce responsive documents because Plaintiff did not agree to a proposed

12 protective order is untenable. Also, Defendant was required under Rule

13 34(b)(2)(C) to state that it is withholding documents and state the objection

14 that applies to its refusal to produce. Here, due to the boilerplate objections

15 employed by Defendant, it is unclear whether it is withholding all relevant

16 documents because of the lack of a protective order or whether it also is

17 withholding certain relevant documents based upon other objections. The

18 Court reminds Defendant that if relevant documents are being withheld on

19 the basis of privilege, the boilerplate objection will not stand. Defendant

20 must comply with Rule 26(b)(5) to the extent that privilege will be asserted.

21

Plaintiffs’ motion to compel production is GRANTED. Defendant must

22 produce relevant, non-privileged documents within 14 days of this Order.

23

D. Requests for Admission (ECF No. 59-3)

24

At issue are RFAs 2 and 4-13. Regarding RFAs 2, 4, 5, 6, 7, 8, 10, and

25 11, Defendant responded that they have conducted a reasonable inquiry and

26 that information it knows or can readily obtain is insufficient to enable

27 Defendant to admit or deny these RFAs. This response is legally sufficient

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1 under Rule 36(a)(4), but Defendant is risking the impositions of sanctions

2 under Rule 37(c)(2) in the event the matter is proved true. In addition,

3 sanctions may be imposed under Rule 26(g)(1)(B) and (3) against anyone who

4 signed the response if it is determined that the response was interposed for

5 an improper purpose, such as to harass, cause unnecessary delay or

6 needlessly increase the cost of litigation. As to these RFAs, Plaintiffs’ motion

7 to compel is DENIED. In some of these RFAs, Defendant interposes an

8 objection for vagueness to the term “private number.” That objection is

9 uniformly overruled – the definition provided is clearly based upon

10 Defendant’s own designation of phone numbers not to be recorded. It is not

11 vague.

12

In RFA 12, Plaintiffs request that Defendant admit that certain

13 documents, submitted with the RFA and identified as RFA1-001 through

14 RFA 1-0029, are genuine. Defendant responded that it lacks sufficient

15 information to admit or deny the request because the documents did not come

16 from their records. The documents appear to be a series of emails between

17 certain employees of Defendant and others. Defendant argues that it should

18 not be required to authenticate third-party documents. While correct so far

19 as it goes, these documents reflect communications from Defendant’s own

20 email system. The records should be capable of authentication or a more

21 detailed explanation regarding why certain of these documents cannot be

22 authenticated should be forthcoming. As to this RFA, Plaintiffs’ motion to

23 compel is GRANTED. Defendant must provide an amended answer within

24 14 days of this Order.

25

Similarly, RFA 13 calls for Defendant to admit “all foundational

26 requirements” for admission of the same documents presented in RFA 12. In

27 some respects, this RFA is duplicative of RFA 12 inasmuch as authenticity is

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1 a foundational requirement for admission. First, Defendant objects that the

2 RFA calls for a legal conclusion. The Court overrules this objection.

3 Defendant also asserts that it lacks sufficient information to admit or deny

4 this request. The Court agrees that Plaintiffs should have specifically

5 identified the factual foundational requirements that Plaintiffs want to be

6 admitted. The Court finds the RFA vague and need not be further answered.

7 Plaintiffs’ motion to compel a further answer to RFA 13 is DENIED.

8

CONCLUSION

9

For the foregoing reasons, Plaintiffs’ motion to compel further discovery

10 responses from Defendant, as presented in this Joint Motion is GRANTED

11 IN PART AND DENIED IN PART. To the extent that the Court has

12 ordered further responses, answers or the production of documents,

13 Defendant must further respond, answer and produce relevant, non-

14 privileged documents within 14 days of this Order.

15

IT IS SO ORDERED:

16 Dated: October 16, 2017

17

18

19

20

21

22

23

24

25

26

27

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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 JUAN ROMERO, FRANK TISCARENO,

12

and KENNETH ELLIOTT, on behalf of themselves and all others similarly

13 situated,

14

Plaintiffs,

Case No.: 16cv1283 JM (MDD)
ORDER DENYING MOTION TO INTERVENE

15 v.

16 SECURUS TECHNOLOGIES, INC.,

17

Defendant.

18

19

Putative Intervenor Pedro Rodriguez (“Rodriguez”) moves, pursuant to Federal Rule

20 of Civil Procedure 24, to intervene in this action as a matter of right and for permissive

21 intervention. (Doc. No. 53.) Plaintiffs Juan Romero, Frank Tiscareno, and Kenneth Elliott

22 (collectively, “Plaintiffs”) oppose the motion, (Doc. No. 58), as does Defendant Securus

23 Technologies, Inc. (“Securus” or “Defendant”), (Doc. No. 57). The court finds the matter

24 appropriate for decision without oral argument pursuant to Local Rule 7.1(d)(1) and, for

25 the following reasons, denies the motion.

26

BACKGROUND

27

Plaintiffs are two former inmates and a criminal defense attorney, all of whom used

28 Defendant’s telephone systems to make calls to and from certain correctional facilities in

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1 California. Plaintiffs filed their original complaint on May 27, 2016. (Doc. No. 1.) The

2 operative third amended complaint alleges six causes of action: (1) violation of the

3 California Invasion of Privacy Act; (2) violation of California’s Unfair Competition Law;

4 (3) fraudulent concealment/intentional omission of material facts under California Civil

5 Code §§ 1709, 1710(3); (4) fraud and intentional misrepresentation under California Civil

6 Code §§ 1709, 1710(1); (5) negligence; and (6) unjust enrichment. (Doc. No. 30.) All six

7 counts stem from Defendant’s allegedly improper recording of attorney-client calls.

8 Plaintiffs have moved the court to represent a class of individuals whose attorney-client

9 conversations to or from a number “designated or requested not to be recorded” were

10 eavesdropped on or recorded during the class period. (Doc. No. 62-1 at 1.) As of the date

11 of this order, the parties have completed the first phase of discovery and Plaintiffs have

12 moved the court to certify the class. (See Doc. Nos. 46, 62.)

13

On July 7, 2017, Rodriguez, an inmate at Maguire Correctional Facility, filed the

14 instant pro se motion to intervene. (Doc. No. 53.) In his motion, Rodriguez alleges three

15 causes of action: (1) negligence; (2) fraud, concealment, intentional omission and

16 misrepresentation of fact; and (3) false representations. While Rodriguez incorporates the

17 same factual allegations as Plaintiffs’ original complaint, Rodriguez also alleges that

18 Defendant passed “privileged calls” to the prosecution in a criminal action against

19 Rodriguez and that a Securus employee both provided false documentation in response to

20 a subpoena and gave false testimony at Rodriguez’s trial. (Id. at 4–7.) The crux of

21 Rodriguez’s complaint is that Defendant allegedly acted “as a vassal to the prosecution

22 team,” which “prevented [Rodriguez] from presenting a defense and pursuing avenues of

23 defense.” (Id. at 6–7.)

24

LEGAL STANDARDS

25

Rodriguez seeks to intervene both as a matter of right and through permissive

26 intervention. Rule 24 of the Federal Rules of Civil Procedure provides for two types of

27 intervention. Under Rule 24(a)(2), the court “must” permit an individual to intervene who

28 “claims an interest relating to the property or transaction that is the subject of the action,

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1 and is so situated that disposing of the action may as a practical matter impair or impede

2 the movant’s ability to protect its interest, unless existing parties adequately represent that

3 interest.” Under Rule 24(b), the court has discretion to allow an individual to intervene

4 when his claim and the primary action involve a common question of law or fact, and

5 allowing intervention will not “unduly delay or prejudice the adjudication of the original

6 parties’ rights.” In either case, Rule 24 has traditionally been construed liberally in favor

7 of applicants for intervention. See Washington State Bldg. & Const. Trades Council, AFL-

8 CIO v. Spellman, 684 F.2d 627, 630 (9th Cir. 1982).

9

DISCUSSION

10 I. Intervention as a Matter of Right

11

A party satisfies the requirements for intervention as a matter of right upon showing:

12 “(1) the application for intervention must be timely; (2) the applicant must have a

13 ‘significantly protectable’ interest relating to the property or transaction that is the subject

14 of the action; (3) the applicant must be so situated that the disposition of the action may,

15 as a practical matter, impair or impede the applicant’s ability to protect that interest; and

16 (4) the applicant’s interest must not be adequately represented by the existing parties in the

17 lawsuit.” Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir. 2001). The

18 court accepts as true the non-conclusory allegations made in support of a motion to

19 intervene. Id. at 819. The intervenor bears the burden of showing that the elements for

20 intervention as a matter of right are met. Citizens for Balanced Use v. Montana Wilderness

21 Ass’n, 647 F.3d 893, 897 (9th Cir. 2011). “Failure to satisfy any one of the requirements

22 is fatal.” Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009).

23

With respect to Rodriguez’s argument to intervene as a matter of right, the court

24 concludes that Rodriguez’s limited interest in Plaintiffs’ claims, if any, will not be

25 significantly impaired and, additionally, is adequately represented by Plaintiffs.

26 Rodriguez’s claims are similar to those of Plaintiffs only to the extent that he incorporated

27 the factual allegations in Plaintiffs’ original complaint. (See Doc. No. 53 ¶ 8.) While

28 Rodriguez claims that his “privileged calls were recorded,” he does not explain how the

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1 proceedings in this action would impair or impede his ability to protect his interests.

2 Plaintiffs are seeking class certification. If the class is certified, Rodriguez can either

3 remain in the class or opt out, providing he qualifies as a class member. If the class is not

4 certified or Rodriguez does not qualify as a class member, then the outcome of this action

5 will have no effect on his interests. Therefore, Rodriguez’s interest “falls far short of the

6 ‘direct, non-contingent, substantial and legally protectable’ interest required for

7 intervention as a matter of right.” S. California Edison Co. v. Lynch, 307 F.3d 794, 803

8 (9th Cir.), modified, 307 F.3d 943 (9th Cir. 2002) (internal citation omitted); see also

9 California ex rel. Lockyer v. United States, 450 F.3d 436, 442 (9th Cir. 2006) (“Even if

10 this lawsuit would affect the proposed intervenors’ interests, their interests might not be

11 impaired if they have ‘other means’ to protect them.”) (emphasis in original).

12

Similarly, Rodriguez fails to show that any limited interest he may have in this action

13 is not adequately represented by Plaintiffs. “If an applicant for intervention and an existing

14 party share the same ultimate objective, a presumption of adequacy of representation

15 arises.” Citizens for Balanced Use, 647 F.3d at 898. To the extent that Rodriguez’s factual

16 claims are similar to Plaintiffs’, Rodriguez has not provided evidence to rebut this

17 presumption. Furthermore, there is no indication in the record that Plaintiffs’ counsel has

18 failed to provide effective representation in this action or will fail to do so in the future.

19 Accordingly, Rodriguez’s interest in the alleged recording of attorney-client calls, if any,

20 is adequately represented by Plaintiffs.

21

Therefore, the motion to intervene as a matter of right is denied.

22 II. Permissive Intervention

23

The court denies Rodriguez’s motion for permissive intervention for three reasons.

24 First, Rodriguez fails to allege a common question of law or fact between his claims and

25 Plaintiffs’. Although Rodriguez alleges Defendant recorded his privileged calls, he does

26 not allege that those calls were with his attorney nor otherwise explain how they were

27 privileged. Moreover, Rodriguez himself notes that his claims for negligence, fraud, and

28 false representations are “unique” because they turn on his allegations that Securus

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1 “directly funneled” his privileged calls to the prosecution team and gave false testimony in

2 Rodriguez’s criminal trial. Those claims bear little to no factual or legal similarity to

3 Plaintiffs’ claims, which turn on Defendant’s alleged recording or eavesdropping of

4 attorney-client conversations to or from a number designated or requested not to be

5 recorded.

6

Second, Rodriguez’s intervention would enlarge the scope of this action, result in an

7 undue delay in resolving this action, and undermine judicial economy. Third, Federal Rule

8 of Civil Procedure 1 provides that the Federal Rules of Civil Procedure “should be

9 construed, administered, and employed by the court and the parties to secure the just,

10 speedy, and inexpensive determination of every action and proceeding.” Denial of

11 Rodriguez’s motion to intervene furthers the goals of Rule 1.

12

Therefore, the motion for permissive intervention is denied.

13

CONCLUSION

14

For the foregoing reasons, the court denies Rodriguez’s motion to intervene.

15

IT IS SO ORDERED.

16 DATED: October 31, 2017 17 18

JEFFREY T. MILLER United States District Judge

19

20

21

22

23

24

25

26

27

28

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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 JUAN ROMERO, FRANK TISCARENO, and KENNETH
12 ELLIOT, on behalf of themselves

Case No.: 16cv1283-JM-MDD ORDER DENYING MOTION TO

13 and all others similarly situated,

MODIFY PLAINTIFF'S DEADLINE

14

Plaintiffs, TO AMEND PLEADINGS

15 v.

[ECF No. 69]

16 SECURUS TECHNOLOGIES,
INC., 17
Defendant. 18

19 Before the Court is a Joint Motion for Determination of Application to
20 Modify Plaintiffs’ Deadline to Amend Pleadings. (ECF No. 69). Specifically,
21 Plaintiffs seek to extend the filing deadline for a motion to amend the
22 complaint to substitute in or add another named plaintiff whose claims arise
23 out of the same set of general facts that are at issue in the current operative
24 complaint. (Id. at 8). Defendant opposes Plaintiffs’ request for failure to
25 demonstrate good cause or excusable neglect in “seeking to modify the Court’s
26 scheduling order four months after the passing of the deadline to amend the
27

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1 pleadings.” (Id. at 9). For the reasons stated herein, Plaintiffs’ request to

2 extend the deadline to amend the pleadings is DENIED.

3

Relevant Procedural History

4

The Complaint was filed on May 27, 2016. (ECF No. 1). On July 26,

5 2016 Plaintiffs filed their First Amended Complaint. (ECF No. 8). Following

6 a ruling on Defendant’s motion to dismiss and motion to strike, Plaintiffs

7 filed a Second Amended Complaint on November 7, 2016. (ECF No. 22).

8 Following Defendant’s motion to dismiss and ruling thereon, Plaintiffs filed a

9 Third Amended Complaint on February 8, 2017. (ECF No. 30). Defendant

10 filed a motion to dismiss Plaintiffs’ Third Amended Complaint. (ECF No. 31).

11 The District Court granted in part and denied in part Defendant’s motion and

12 stated “the court’s order is without leave to amend” making the Third

13 Amended Complaint the operative complaint for the case. (ECF No. 37). An

14 ENE/CMC was held May 26, 2017 and a Case Management Order was issued

15 May 30, 2017. (ECF Nos. 45, 46). The Order provided that the deadline to

16 “join other parties, to amend the pleadings, or to file additional pleadings

17 shall be filed on or before June 26, 2017.” (ECF No. 46 at 1).

18

Legal Standard

19

Rule 16(a)(4), Fed. R. Civ. P., provides that a schedule may be modified

20 “only for good cause.” “Rule 16(b)'s ‘good cause’ standard primarily considers

21 the diligence of the party seeking the amendment.” Johnson v. Mammoth

22 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992); Sharp v. Covenant Care

23 LLC, 288 F.R.D. 465, 467 (S.D. Cal. 2012). Rule 1, Fed. R. Civ. P., provides

24 that the Federal Rules of Civil Procedure “should be construed, administered,

25 and employed by the court and the parties to secure the just, speedy, and

26 inexpensive determination of every action and proceeding.” As one court has

27 stated:

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1

Pleadings cannot be a continuously moving target for obvious reasons.

The amendment deadline serves to frame the issues at a fixed point in

2

time so that the parties have an adequate opportunity to prepare their

3

respective positions moving forward. Even so, the deadline will not

entirely foreclose amendments, so long as the standard of good cause is

4

met to warrant the amendment.

5 Stephens v. Idaho Dept. of Parks and Recreation, 2011 WL 6150641 *3, No.
6 1:10–cv–00267–REB (D. Idaho December 12, 2011).
7 Discussion
8 According to Plaintiffs, Defendant was served with a subpoena duces
9 tecum on August 1, 2017. In response, Defendant produced 30 pages of
10 stored emails with seven electronically stored call detail spreadsheets.
11 Plaintiff contends that a review of the call reports reveal that detainee John
12 Wiederkehr’s phone conversation with his attorney was improperly recorded.
13 (ECF No. 69 at 2-3). Plaintiff asserts “[a]s a result . . . Mr. Wiederkehr has
14 agreed to serve as an additional or substitute lead plaintiff in the case.” (Id.
15 at 3). Plaintiffs maintain that “Mr. Wiederkehr was unaware of his claims
16 against Defendant until after the deadline to amend the pleadings.” (Id.)
17 Plaintiffs’ filed their motion to certify the class and to appoint class counsel
18 on October 10, 2017. (ECF No. 62). And, Plaintiffs contend they “have
19 submitted more than sufficient admissible evidence . . . to make a prima facie
20 case for class certification.” (ECF No. 69-9).
21 The pertinent inquiry is whether pursuant to Rule 16(b), Plaintiffs have
22 shown “good cause” to modify the court’s case schedule. “[T]he focus of the
23 inquiry is upon the moving party’s reasons for seeking modification.”
24 Johnson v. Mammoth Recreations, Inc., 975 F2d 604,609 (9th Cir. 1992). In
25 Plaintiff’s own words “[a]t this time Plaintiff propose an amendment to the
26 deadline which would allow them to merely add or substitute a new plaintiff
27

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1 with claims which fall within the narrower class set forth in Plaintiffs’

2 Motion for Class Certification. . . .” (Id. at 8). Plaintiffs’ have not explained

3 the necessity of adding an additional plaintiff at this time nor the prejudice to

4 be suffered if this motion is denied.

5

Defendant argues that “[t]here are already three named plaintiffs, and

6 while Plaintiffs state that they would like to amend their pleadings to add

7 Mr. Werhderkehr, they do not describe any importance of adding an

8 additional plaintiff.” (ECF No. 69 at 11). The Court agrees with Defendant

9 that if the class is certified, Mr. Wiederkehr can opt in as a member of the

10 class or opt out and file his own action against Defendants.1

11

The Court finds that Plaintiffs have failed to show the requisite

12 diligence and good cause. The motion is DENIED.

13

IT IS SO ORDERED.

14 Dated: November 20, 2017

15

16

17

18

19

20

21

22

23

24
1 On October 31, 2017, the district court denied a motion to intervene by another

25 individual (Pedro Rodriguez) seeking to be added as a named plaintiff. (ECF No. 73). As

the district court pointed out “[i]f the class is certified, Rodriguez can either remain in the
26 class or opt out. . . . If the class is not certified or Rodriguez does not qualify as a class

27

member, then the outcome of this action will have no effect on his interests.” (Id. at 4). Mr. Werhderkehr appears to be in a similar position.

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2

3

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7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 JUAN ROMERO, FRANK TISCARENO,

12

and KENNETH ELLIOTT, on behalf of themselves and all others similarly

13 situated,

14

Plaintiffs,

15 v.

Case No.: 16cv1283 JM (MDD)
ORDER DENYING DEFENDANT’S MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE

16 SECURUS TECHNOLOGIES, INC.,

17

Defendant.

18

19

Defendant Securus Technologies, Inc. (“Defendant”) moves the court for relief from

20 a non-dispositive pretrial order issued by Magistrate Judge Mitchell D. Dembin. (Doc. No.

21 70.) Specifically, Defendant asks the court to modify Magistrate Judge Dembin’s October

22 16, 2017 Order on Joint Motion for Determination of Discovery Dispute Regarding

23 Defendant’s Responses to Written Discovery (“Magistrate Judge’s Order”), (Doc. No. 66),

24 to require the parties to negotiate in good faith to finalize the terms of an agreed protective

25 order and, if no agreement is reached by a date certain, to submit competing protective

26

27

28

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1 orders to the court.1 Plaintiffs Juan Romero, Frank Tiscareno, and Kenneth Elliott

2 (collectively, “Plaintiffs”) oppose the motion. (Doc. No. 81.) The court finds the matter

3 appropriate for decision without oral argument pursuant to Local Rule 7.1(d)(1) and, for

4 the following reasons, denies the motion.

5

BACKGROUND

6

Plaintiffs are two former inmates and a criminal defense attorney, all of whom used

7 Defendant’s telephone systems to make calls to and from certain correctional facilities in

8 California. Plaintiffs have moved the court to represent a class of individuals whose

9 attorney-client conversations to or from a number “designated or requested not to be

10 recorded” were eavesdropped on or recorded during the class period. (Doc. No. 62-1 at 1.)

11

On September 22, 2017, the parties submitted a joint motion for determination of a

12 discovery dispute to Magistrate Judge Dembin. (Doc. No. 59.) The motion presented

13 Plaintiffs’ motion to compel additional responses from Defendant to certain

14 interrogatories, requests for production, and requests for admission. Defendant opposed

15 the motion, in pertinent part because of the lack of a protective order. The parties had been

16 operating under the shared assumption that a protective order had already been executed.

17 However, when preparing its discovery responses, Defendant learned that a protective

18 order was never finalized, filed, or entered. In the absence of a protective order, Defendant

19 refused to produce documents in response to Plaintiffs’ discovery requests.

20

When the parties were unable to agree on the terms of a protective order, Plaintiffs

21 informed Defendant that they would file the motion to compel. At no point did Defendant

22 move for a protective order. Instead, in its opposition to Plaintiffs’ motion to compel,

23

24 1 In its reply brief, Defendant asks the court for the first time to modify the Magistrate
25 Judge’s Order “to enter the version proposed by Plaintiffs,” apparently referring to a version of a protective order previously offered by Plaintiffs. (Doc. No. 82 at 3:20–23.)
26 Defendant did not request such relief in its original motion. Under the court’s chamber’s
27 rules, matters “raised by a party for the first time in their reply brief, unless directly in response to the opposition, may not be considered.” Accordingly, the court will not
28 consider this newly requested form of relief.

2

16cv1283 JM (MDD)

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1 Defendant “respectfully suggest[ed] that the Court direct the parties to negotiate in good

2 faith to finalize the terms of an agreed protective order, and if no agreement may be reached

3 by a date certain, to submit competing protective orders with redlines showing their

4 differences.”

5

On October 16, 2017, Magistrate Judge Dembin granted in part and denied in part

6 Plaintiffs’ motion to compel. (Doc. No. 66.) Magistrate Judge Dembin determined that

7 Defendant’s refusal to produce documents in response to certain interrogatories and

8 requests for production because of the lack of protective order was “just plain wrong.”

9 (Doc. No. 66 at 4.) As Magistrate Judge Dembin explained,

10

Following the failed attempt to achieve agreement on the terms of protective

11

order, Defendant had two options: Produce the requested documents or move

12

the Court for a protective order under Rule 26(c), Fed. R. Civ. P. It was not

13

an option for Defendant to simply withhold production. Rule 26(c)(1)

14

provides that following a failed attempt to reach agreement, “the party from

15

whom discovery is sought may move for a protective order….” Defendant

16

has had ample opportunity to move for a protective order. Defendant’s failure

17

to do so is inexplicable.

18 (Id.) Because Defendant had not produced the requested documents nor moved for a

19 protective order, Magistrate Judge Dembin granted Plaintiffs’ motion to compel certain

20 interrogatories and requests for production.

21

On October 30, 2017, Defendant filed the instant motion seeking to modify the

22 Magistrate Judge’s Order. (Doc. No. 70.)

23

LEGAL STANDARDS

24

A non-dispositive pretrial order of a magistrate judge will be upheld unless it is

25 “clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A).

26 As other district courts have described,

27

This Court’s function, on a motion for review of a magistrate judge’s

28

discovery order, is not to decide what decision this Court would have reached

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1

on its own, nor to determine what is the best possible result considering all

2

available evidence. It is to decide whether the Magistrate Judge, based on the

3

evidence and information before him, rendered a decision that was clearly

4

erroneous or contrary to law.

5 Bare Escentuals Beauty, Inc. v. Costco Wholesale Corp., 2007 WL 4357672, at *2 (S.D.

6 Cal. Dec. 11, 2007) (quoting Paramount Pictures Corp. v. Replay TV, 2002 WL 32151632,

7 at *1 (C.D. Cal. May 30, 2002)).

8

Review under the clearly erroneous standard, which applies to “factual findings and

9 discretionary decisions made in connection with non-dispositive pretrial discovery

10 matters,” Guzman v. Bridgepoint Educ., Inc., 2014 WL 3407242, at *4 (S.D. Cal. July 10,

11 2014), is “significantly deferential, requiring a definite and firm conviction that a mistake

12 has been committed.” Concrete Pipe & Prod. of California, Inc. v. Constr. Laborers

13 Pension Tr. for S. California, 508 U.S. 602, 623 (1993). The contrary to law standard

14 “permits independent review of purely legal determinations by a magistrate judge.” Stoba

15 v. Saveology.com, LLC, 2015 WL 5040024, at *4 (S.D. Cal. Aug. 26, 2015).

16

DISCUSSION

17

Defendant does not cite to a single authority in the “Argument” section of its motion

18 to support its position, nor does it address how the Magistrate Judge’s Order was clearly

19 erroneous or contrary to law. (See Doc. No. 70 at 3–6.) Instead, Defendant merely

20 reiterates how both parties mistakenly assumed that a protective order was already in place,

21 but once Defendant informed Plaintiffs of the lack of protective order, the parties could not

22 agree on the terms of a protective order. Defendant concludes that “Plaintiffs’ position [of

23 not agreeing to proposed terms of a protective order] is nothing more than gamesmanship.”

24

After Plaintiffs point out that Defendant still has not moved for a protective order,

25 Defendant argues in its reply that Magistrate Judge Dembin “improperly faulted

26 [Defendant] for supposedly failing to seek a protective order,” arguing that it had done so

27 in the joint motion. In the joint motion, Defendant “respectfully suggest[ed] that the Court

28 direct the parties to negotiate in good faith to finalize the terms of an agreed protective

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1 order, and if no agreement may be reached by a date certain, to submit competing protective

2 orders with redlines showing their differences.” Magistrate Judge Dembin exercised his

3 discretion when he declined to follow that suggestion. Given that Magistrate Judge

4 Dembin’s chamber’s rules already require parties to participate meaningfully in meet and

5 confer sessions over discovery disputes before moving the court for a protective order, it

6 would have been redundant for him to make such an order. Therefore, the court finds that

7 Magistrate Judge Dembin did not abuse his broad discretion and his decision was neither

8 clearly erroneous nor contrary to law.

9

In sum, Defendant failed to provide the court with sufficient evidence or authority

10 to give it a “definite and firm conviction that a mistake has been committed.” Concrete

11 Pipe & Prod. of California, Inc. v. Constr. Laborers Pension Tr. for S. California, 508 U.S.

12 602, 623 (1993). Consequently, the court will not modify the Magistrate Judge’s Order.

13

CONCLUSION

14

For the foregoing reasons, the court denies Defendant’s motion.

15

IT IS SO ORDERED.

16 17 DATED: January 5, 2018
18

JEFFREY T. MILLER United States District Judge

19

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2

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11

12 JUAN ROMERO; FRANK TISCARENO;

13

and KENNETH ELLIOTT, on behalf of themselves and all others similarly

14 situated,

15

Plaintiffs,

16 v.

Case No.: 16cv1283 JM (MDD)
ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING IN PART MOTION FOR CLASS CERTIFICATION

17 SECURUS TECHNOLOGIES, INC.,

18

Defendant.

19

20

Presently before the court are Plaintiffs’ motion for partial summary judgment (Doc.

21 No. 101) and renewed motion for class certification (Doc. No. 122). Defendant Securus

22 Technologies, Inc. (“Securus”) opposes both motions. For the reasons discussed below,

23 Plaintiffs’ motion for class certification is granted in part and the motion for partial

24 summary judgment is denied.

25

BACKGROUND

26

Plaintiffs Juan Romero, Frank Tiscareno, and Kenneth Elliot filed this putative class

27 action on May 27, 2016, alleging Securus unlawfully recorded detainee-attorney calls.

28 Securus provides inmate communication services for correctional facilities throughout

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1 California. Plaintiffs are two former inmates and a criminal defense attorney, all of whom

2 used Securus’ telephone systems to make calls to and from certain correctional facilities in

3 California and allege that their calls were recorded.

4

MOTION FOR PARTIAL SUMMARY JUDGMENT

5

Plaintiffs seek summary judgment on one element of their claims—whether

6 violation of California Penal Code § 636(a) requires Securus to intentionally record a

7 conversation between a detainee and his or her attorney without permission. (Doc. No.

8 101.) For the reasons discussed below, Plaintiffs’ motion is denied.

9

I. Legal Standards

10

A motion for summary judgment shall be granted where “there is no genuine issue

11 as to any material fact and . . . the moving party is entitled to judgment as a matter of law.”

12 Fed. R. Civ. P. 56(c). The moving party bears the initial burden of informing the court of

13 the basis for its motion and identifying those portions of the record that it believes

14 demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.

15 Catrett, 477 U.S. 317, 323 (1986). But Federal Rule of Civil Procedure 56 contains “no

16 express or implied requirement . . . that the moving party support its motion with affidavits

17 or other similar materials negating the opponent’s claim.” Id. (emphasis in original).

18

In response to a motion for summary judgment, the nonmoving party cannot rest on

19 the mere allegations or denials of a pleading, but must “go beyond the pleadings and by

20 [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on

21 file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324

22 (internal citations omitted). In other words, the nonmoving party may not rely solely on

23 conclusory allegations unsupported by factual data. Taylor v. List, 880 F.2d 1040, 1045

24 (9th Cir. 1989). The court must examine the evidence in the light most favorable to the

25 nonmoving party, United States v. Diebold, Inc., 369 U.S. 654, 655 (1962), and any doubt

26 as to the existence of an issue of material fact requires denial of the motion, Anderson v.

27 Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

28 ///

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1 II. Analysis

2

Plaintiffs argue that violation of California Penal Code § 636(a) does not require a

3 defendant to intentionally record a conversation between a detainee and his or her attorney

4 without permission. (Doc. No. 101.) Securus makes two arguments in opposition. (Doc.

5 No. 103.) First, Securus argues that ruling on Plaintiffs’ motion would be an advisory

6 opinion. Second, Securus argues that § 636 has an intent requirement.

7 A. Undisputed Facts

8

Plaintiffs cites1 the following evidence indicating that Securus recorded phone calls

9 between inmates and attorneys without their permission: To protect confidentiality, an

10 attorney could designate his or her telephone number as private or “Do Not Record” in

11 Securus’ system. (Doc. No. 62-38, Elliott Decl. ¶ 5; Doc. No. 38-1, Jones Decl. ¶ 4.) This

12 designation indicated that calls with the private number should not be recorded. (See Doc.

13 No. 62-38, Elliott Decl. ¶ 5.)

14

In early 2014, the Sheriff’s Department became aware that Securus recorded

15 numerous inmate telephone calls with private numbers. (Doc. No. 62-27, Exh. 24.) On

16 March 25, 2014, Captain Clamser of the Sheriff’s Department emailed Securus stating that

17 he had randomly reviewed the call logs for the period of April 1, 2013 through March 25,

18 2014 and found a number of private calls were recorded that should not have been. (Id. at

19 3-4.) 2 Captain Clamser stated that he knew Securus was “trying to determine why private

20 calls are being recorded and I wanted to provide you with additional examples.” (Id. at 3.)

21 In a series of email exchanges between Captain Clamser and Securus employees during the

22 period of April 4, 2014 to August 5, 2014, Securus indicated that it spent significant time

23 and resources trying “to find the root cause” of “the issues of the private attorney calls that

24

25 1 Plaintiffs’ motion for summary judgment cites to Securus’ opposition to Plaintiffs’ initial
26 motion for class certification. Securus’ opposition, in turn, cites to the exhibits to
27 Plaintiffs’ motion for class certification. These facts are drawn from the exhibits to Plaintiffs’ initial motion for class certification. (Doc. Nos. 62-2 through 62-48.)
28 2 All page citations in this memorandum refer to those created by the CM/ECF system.

3

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1 are being recorded,” but was unable to determine why the calls were recorded. (Doc. No.

2 62-4, Exh 1. at 18-62.) Securus attempted to reproduce the issue to find the cause, but in

3 the emails before the court, the “root cause” of the issue was never discovered. (Id.)

4 During this period, the Sheriff’s Department emailed Securus on a rolling basis with lists

5 of recorded private calls and asked Securus to delete the call recordings. (See id.) Securus

6 regularly responded that it would purge the call recordings. (Id.) Securus’ Director of

7 Support Services, Ian Jones, declares that “Securus did purge certain calls it learned were

8 recorded accidentally and that the San Diego County Sheriff’s Office had specifically

9 requested to be purged.” (Doc. No. 38-1, Jones Decl. ¶ 7.)

10

These facts are undisputed for purposes of this motion as Securus cites no evidence

11 disputing these facts.

12 B. Advisory Opinion

13

1. Motion for Partial Summary Judgment

14

Securus argues that ruling on the issue presented by Plaintiffs’ motion would be

15 “entirely academic” and amount to an advisory opinion as Plaintiffs “failed to show an

16 absence of a material dispute regarding all facts that would trigger the need for any inquiry

17 into whether California Penal Code Section 636(a) requires intent.” (Doc. No. 103 at 4-5.)

18 Specifically, Securus argues that Plaintiffs “merely recite Plaintiffs’ own views about other

19 aspects of the record.” (Id. at 2.)

20

The question presented in Plaintiffs’ motion for summary judgment is not

21 hypothetical or “academic.” Rule 56 provides that a “party may move for summary

22 judgment, identifying each claim or defense—or the part of each claim or defense—on

23 which summary judgment is sought.” Fed. R. Civ. P. 56(a) (emphasis added). See also

24 Pinnacle Fitness & Recreation Mgmt., LLC v. Jerry & Vickie Moyes Family Tr., 844 F.

25 Supp. 2d 1078, 1093 (S.D. Cal. 2012). Plaintiffs seek summary judgment on one element

26 of their California Invasion of Privacy Act (“CIPA”) claims—whether Securus had the

27 intent, if any, necessary to violate the statute. Plaintiffs cite evidence indicating that

28 Securus inadvertently recorded inmate-attorney calls. Although Plaintiffs specifically cite

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1 to Securus’ opposition to Plaintiffs’ motion for class certification, this opposition

2 summarizes and cites to evidence in the record that the court may consider on summary

3 judgment. See Fed. R. Civ. P. 56(c)(1). Whether this evidence is sufficient to grant

4 Plaintiffs’ motion for summary judgment on the intent element is an issue properly decided

5 by the court.

6

2. Article III Standing

7

Securus argues that Plaintiffs lack standing because there is no evidence Plaintiffs

8 suffered “an injury in fact.” Securus argues that Plaintiffs fail to present any evidence that

9 their calls with persons covered by § 636(a) were recorded.

10

As the party putting the claims before the court, Plaintiffs bear the burden of

11 establishing jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

12 (1994). There is no subject matter jurisdiction without standing, and the “irreducible

13 constitutional minimum” of standing consists of three elements. Lujan v. Defenders of

14 Wildlife, 504 U.S. 555, 560 (1992). A plaintiff must have (1) suffered an injury in fact,

15 (2) which is fairly traceable to the challenged conduct of the defendant, and (3) which is

16 likely to be redressed by a favorable judicial decision. Id. at 560–61. To establish injury

17 in fact—the relevant element here—the plaintiff must show that he or she suffered “an

18 invasion of a legally protected interest” that is “concrete and particularized” and “actual or

19 imminent, not conjectural or hypothetical.” Id. at 560 (internal quotations omitted). To

20 prevail on his or her motion for summary judgment, “a plaintiff must establish that there

21 exists no genuine issue of material fact as to justiciability or the merits.” Dep’t of

22 Commerce v. U.S. House of Representatives, 525 U.S. 316, 329 (1999) (citing Lujan, 497

23 U.S. at 884). “In a class action, standing is satisfied if at least one named plaintiff meets

24 the requirements.” Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007).

25

In their reply brief, Plaintiffs cite to evidence (previously cited in their initial motion

26 for class certification) indicating that the named Plaintiffs’ calls were recorded. Plaintiffs

27 Romero and Tiscareno declare that a March 25, 2014 email from the Sheriff’s Department

28 indicates that their attorney’s phone number was recorded between April 2013 and March

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1 2014. (Doc. No. 62-41, Romero Decl. ¶ 7; Doc. No. 62-42, Exh. 1; Doc. No. 62-43,

2 Tiscareno Decl. ¶ 7; Doc. No. 62-44, Exh. 1.)3 Additionally, an exhibit attached to

3 Securus’ interrogatory responses indicates that on February 20, 2014, Romero’s call with

4 his attorney’s telephone number was recorded. (Doc. No. 74-2, Exh. 1 at 29.) Plaintiff

5 Elliott’s telephone number4 was also among those identified in the Sheriff Department’s

6 March 25, 2014 email as recorded. (Doc. No. 62-40, Exh. 2 at 4.) The same exhibit

7 attached to Securus’ interrogatory responses further indicates that a call with Elliott’s

8 number was recorded on November 6, 2013. (Doc. No. 74-2, Exh. 1 at 25.)

9

Securus “fail[s] to set forth any specific facts showing that there is a genuine issue

10 of standing for trial” as to whether Plaintiffs’ calls were recorded. See Dep’t of Commerce,

11 525 U.S. at 330. The evidence suggests that Securus recorded Elliott’s call with an inmate

12 and Romero’s call with his attorney’s number. Securus cites no evidence disputing

13 Plaintiffs’ evidence and did not raise any objections to this evidence during the hearing. In

14 sum, on the record before the court there is not a genuine issue of material fact on the issue

15 of whether Plaintiffs have standing.

16 C. Section 636(a) Is Not a Strict Liability Offense

17

Plaintiffs argue that § 636(a) is a strict liability offense. This subdivision is not a

18 strict liability offense as it does not expressly or by necessary implication exclude an intent

19 requirement.

20 ///

21 ///

22

23 3 Romero and Tiscareno declare that the telephone number of their attorney during the
24 times they were detained was (619) 231-0401. (Doc. No. 62-41, Romero Decl. ¶ 6; Doc.
25 No. 62-42, Tiscareno Decl. ¶ 7.) An email the Sheriff’s Department sent to Securus indicates that a telephone call with this number was recorded sometime between April 1,
26 2013 and March 25, 2014. (Doc. No. 62-42, Exh. 1; Doc. No. 62-44, Exh. 1.) 27 4 Elliott’s number is “760-630-3333.” (Doc. No. 74-4, Elliott Decl. ¶¶ 2-3.) An email the
Sheriff’s Department sent to Securus also indicates that a telephone call with this number 28 was recorded.

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1

1. Plain Language of § 636

2

Plaintiffs argue that the plain language of § 636(a) does not impose an intent

3 requirement, unlike other sections of the California Invasion of Privacy Act (“CIPA”) such

4 as §§ 632(a), 632.7(a), and 636(b).

5

“In interpreting a state statute, we must determine what meaning the state’s highest

6 court would give to the law.” Bass v. Cty. of Butte, 458 F.3d 978, 981 (9th Cir. 2006).

7 Thus, the court must follow the state’s rules of statutory interpretation. Id. “As in any case

8 involving statutory interpretation, our fundamental task is to determine the Legislature’s

9 intent so as to effectuate the law’s purpose.” Id. at 981-82. (quoting People v. Murphy,

10 25 Cal. 4th 136 (2001)). A court should “examine the language itself, the legislative history

11 of the provision and case law construing the crucial language, in that order.” People v.

12 Childs, 220 Cal. App. 4th 1079, 1098 (2013) (citing People v. Heitzman, 9 Cal. 4th 189,

13 200 (1994)). A statute’s language should be given a “plain and commonsense meaning.”

14 Bass, 458 F.3d at 982 (quoting Murphy, 25 Cal. 4th 136). “However, text is not to be

15 interpreted in isolation.” Id. “Rather, we must look to ‘the entire substance of the statute

16 . . . in order to determine the scope and purpose of the provision.’” Id.

17

Section 636(a) provides in full—

18

(a) Every person who, without permission from all parties to the conversation,

19

eavesdrops on or records, by means of an electronic device, a conversation, or any portion thereof, between a person who is in the physical custody of a law

20

enforcement officer or other public officer, or who is on the property of a law

21

enforcement agency or other public agency, and that person’s attorney, religious adviser, or licensed physician, is guilty of a felony punishable by imprisonment

22

pursuant to subdivision (h) of Section 1170.

23 The next subdivision, § 636(b), prohibits non-electronic eavesdropping and provides in

24 part—

25

(b) Every person who, intentionally and without permission from all parties to the

26

conversation, nonelectronically eavesdrops upon a conversation, or any portion

27

thereof, that occurs between a person who is in the physical custody of a law enforcement officer or other public officer and that person’s attorney, religious

28

adviser, or licensed physician, is guilty of a public offense. . . . This subdivision does

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1

not apply to conversations that are inadvertently overheard or that take place in a

2

courtroom or other room used for adjudicatory proceedings.

3 (emphasis added). Similarly, § 632(a) prohibits a person from “intentionally”

4 eavesdropping on a confidential communication through electronic means, and § 632.7

5 prohibits “intentionally” recording cordless and cellular telephone communications.

6 Plaintiffs argue that if the legislature intended subdivision (a) to have a mens rea

7 requirement there would be language to that effect, especially when this subdivision is

8 compared to the express intent requirement of subdivision (b) and §§ 632(a) and 632.7(a).

9

The absence of the word “intentionally” in § 636(a), when compared with §§ 632(a),

10 632.7(a), and 636(b), suggests that the legislature excluded this word. But it is not clear

11 from the language of the statute whether omission of this word was meant to exclude any

12 intent requirement from this criminal offense.

13

2. Public Welfare Offenses

14

The California Supreme Court set forth a framework for analyzing criminal statutes

15 without an express intent requirement in In re Jorge M., 23 Cal. 4th 866, 872 (2000). “That

16 the statute contains no reference to knowledge or other language of mens rea is not itself

17 dispositive.” Id. at 872. “When a criminal statute . . . fails to expressly articulate the

18 requisite scienter, . . . [o]n occasion, and particularly for public welfare offenses, a statute

19 will omit any reference to scienter, because no scienter is required.” People v. Hall, 2 Cal.

20 5th 494, 501 (2017) (citing Stark v. Superior Court, 52 Cal. 4th 368, 393 (2011)). “More

21 commonly, though, courts construe criminal statutes against the backdrop of the common

22 law presumption that scienter is required and imply the requisite mental state, even where

23 the statute is silent.” Id. (citing Staples v. United States, 511 U.S. 600, 605-06 (1994); In

24 re Jorge M., 23 Cal. 4th at 872). The general rule that a defendant must have “some form

25 of guilty intent, knowledge, or criminal negligence is of such long standing and so

26 fundamental to our criminal law” that this requirement “is an invariable element of every

27

28

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1 crime unless excluded expressly or by necessary implication.” In re Jorge M., 23 Cal. 4th

2 at 872 (internal citations omitted).

3

Public welfare offenses are generally “based upon the violation of statutes which are

4 purely regulatory in nature and involve widespread injury to the public.” Id. (citation

5 omitted). “Examples of such statutes are furnishing alcohol to a minor (In re Jennings

6 (2004) 34 Cal. 4th 254, 266. . .), sale of adulterated food (In re Casperson (1945) 69 Cal.

7 App. 2d 441, 443. . .) and driving with a prohibited blood-alcohol concentration (Ostrow

8 v. Municipal Court (1983) 149 Cal. App. 3d 668. . .).” People v. King, 38 Cal. 4th 617,

9 623 (2006). “These offenses usually involve light penalties and no moral obloquy or

10 damage to reputation. Although criminal sanctions are relied upon, the primary purpose

11 of the statute is regulation rather than punishment or correction.” Id.

12

In recent jurisprudence, the California Supreme Court has repeatedly declined to

13 construe statutes without an express intent requirement as strict liability offenses. See, e.g.,

14 Stark, 52 Cal. 4th at 393 (embezzlement statute criminalizing appropriation of public funds

15 is not a strict liability offense); People v. Simon, 9 Cal. 4th 493, 519–21 (1995) (criminal

16 violation of Corporations Code section 25401, prohibiting the offer or sale of securities by

17 means of materially false statements or omissions, is not a strict liability offense); People

18 v. Rubalcava, 23 Cal. 4th 322, 332 (2000) (penal code § 12020, prohibiting the carrying of

19 a concealed dirk or dagger, is not a strict liability offense); King, 38 Cal. 4th at 624-26

20 (statute prohibiting possession of short-barreled firearm is not a strict liability offense).

21 But see In re Jennings, 34 Cal. 4th 254 (2004) (statutory misdemeanor offense of

22 purchasing alcohol for persons under 21 years of age is a public welfare offense because

23 legislative history weighed heavily against an intent requirement, offense was a

24 misdemeanor, and it sought to prevent widespread and serious harm to the public). The

25 California Supreme Court has expressly recognized a “prevailing trend ‘away from the

26 imposition of criminal sanctions in the absence of culpability where the governing statute,

27 by implication or otherwise, expresses no legislative intent or policy to be served by

28 imposing strict liability.” Simon, 9 Cal. 4th at 521 (citation omitted).

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1

Where legislative intent is not readily discerned from the text of the statute itself, as

2 in this case, the California Supreme Court has found consideration of the following factors

3 useful: (1) legislative history and context; (2) general provisions on mens rea or strict

4 liability crimes; (3) severity of the punishment provided for the crime; (4) seriousness of

5 harm to the public that may be expected to follow from the forbidden conduct; (5) a

6 defendant’s opportunity to ascertain the true facts; (6) difficulty prosecutors would have in

7 proving a mental state for the crime; and (7) number of expected prosecutions under the

8 statute. In re Jorge M., 23 Cal. 4th at 873.

9

i. Legislative History5

10

The legislative history of § 636 lends itself to more than one interpretation, but does

11 not expressly or by necessary implication exclude an intent requirement from

12 subdivision (a). CIPA (§ 630 et seq.) was enacted in 1967, replacing prior laws that

13 permitted the recording of telephone conversations with the consent one party to the

14 conversation. In 1967, current subdivisions (a) and (c) were enacted together as a single

15 § 636. (Doc. No. 101-3, Exh. 1 at 10.) At that time, § 636 did not include the word

16 “intentionally” or any other mens rea language.6

17

18 5 Plaintiffs request the court take judicial notice of a former version of Cal. Penal Code
19 § 636 and both parties request the court take judicial notice of excerpts of the statute’s legislative history. (Doc. No. 101-3; Doc. No. 103-2.) The court grants both requests. See
20 Zephyr v. Saxon Mortg. Servs., Inc., 873 F. Supp. 2d 1223, 1226 (E.D. Cal. 2012) (taking
21 judicial notice of legislative history of Cal. Penal Code § 632). 6 As enacted in 1967, § 636 provided in full: “Every person, who, without permission from
22 all parties to the conversation, eavesdrops on or records by means of an electronic or other
23 device, a conversation, or any portion thereof, between a person who is in the physical custody of a law enforcement officer or other public officer, or who is on the property of a
24 law enforcement agency or other public agency, and such person’s attorney, religious
25 advisor, or licensed physician, is guilty of a felony; provided, however, the provisions of this section shall not apply to any employee of a public utility engaged in the business of
26 providing service and facilities for telephone or telegraph communications while engaged
27 in the construction, maintenance, conduct or operation of the service or facilities of such public utility who listens in to such conversations for the limited purpose of testing or
28 servicing such equipment.”

10

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1

In 1995, the legislature broke § 636 into three subdivisions. The original language

2 was retained as subdivision (a), but narrowed to include only electronic eavesdropping and

3 recording. Subdivision (b), prohibiting a person from “intentionally” eavesdropping on

4 conversations through non-electronic means, was added for the first time. The committee

5 and Assembly analyses suggest that the word “intentionally” was specifically omitted from

6 subdivision (a) but included in subdivision (b).

7

On February 24, 1995, a bill to amend § 636 was introduced that would have made

8 the following changes to the 1967 statute:7

9

636. Every person who, intentionally and without permission from all parties to the

10

conversation, eavesdrop on or records by means of an electronic or other device, in any manner, a conversation, or any portion thereof, between a person who is in the

11

physical custody of a law enforcement officer or other public officer, or who is on

12

the property of a law enforcement agency or other public agency, and such that person’s attorney, religious advisor, or licensed physician, is guilty of a felony . . .

13 Assem. Bill 1892, 1995-1996 Reg. Sess. (Cal. Feb. 24, 1995). The proposed bill stated
14 that it would “revise this provision to narrow its scope by providing it applies to persons
15 who eavesdrop on this kind of conversation intentionally and without permission, and to
16 expand its scope by providing it applies to persons who eavesdrop on this kind of
17 conversation in any manner.” Id.
18 On May 2, 1995, the Assembly Committee on Public Safety analysis of this version
19 of the bill found that “[u]nder current law . . . [i]n every crime or public offense, there must
20 exist a union, or joint operation of act and intent, or criminal negligence. (Penal Code
21 section 20.).” Assem. Comm. on Pub. Safety, Bill Analysis of Assem. Bill 1892, 1995-
22 1996 Reg. Sess., at 1 (Cal. 1995). Thus, the analysis found, “[c]urrent law already requires
23 that the defendant intentionally eavesdrop and that he or she engage in that activity without
24 permission.” Id. at 2.
25

26

27

28 7 Additions are italicized and deletions are struck through.

11

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1

The Committee’s analysis also noted that the bill was “prompted by a single case in

2 which a Deputy District Attorney is alleged to have engaged in unethical activity by

3 directing an investigator to position herself in a place where she could deliberately overhear

4 certain conversations between a criminal defendant and the defendant’s attorney.” Id. This

5 case was Morrow v. Superior Court, 30 Cal. App. 4th 1252 (1994). In Morrow, a deputy

6 district attorney and investigator conspired to eavesdrop on a conversation between

7 burglary suspect and his counsel in a courtroom holding area. Id. The attorney general

8 filed criminal charges against the district attorney and investigator for violation of § 636,

9 but the charges were dismissed on the grounds that the statute was ambiguous and applied

10 only to electronic eavesdropping. Id. at 1256. The author of the bill indicated that the

11 bill’s purpose was “to widen the currently narrow interpretation of eavesdropping, Penal

12 Code section 636. This statue [sic] is intended to protect a person’s Sixth Amendment

13 right to counsel and must be amended to clearly prohibit any form of intentional

14 eavesdropping which threatens a person’s right to counsel.” Assem. Comm. on Pub.

15 Safety, Bill Analysis of Assem. Bill 1892, 1995-1996 Reg. Sess., at 2 (Cal. 1995). The

16 Committee’s comments indicate that some representatives had concerns that this version

17 of the bill was overbroad and would apply in situations where there was no reasonable

18 expectation of privacy. See id. at 2-4.

19

The bill was amended on May 4, 1995, as follows:

20

636. (a) Every person who, intentionally and without permission from all parties

21

to the conversation, eavesdrops on or records, in any manner by means of an electronic or other device, a conversation, or any portion thereof, between a person

22

who is in the physical custody of a law enforcement officer or other public officer,

23

or who is on the property of a law enforcement agency or other public agency, and that person’s attorney, religious advisor, or licensed physician, is guilty of a felony;

24

provided, however, the provisions of this of a felony.

25

(b) Every person who, intentionally and without permission from all

26

parties to the conversation, nonelectronically eavesdrop upon a conversation, or

27

any portion thereof, that occurs between a person who is in the physical custody of a law enforcement or other public officer and that person’s attorney, religious

28

advisor, or licensed physician is guilty of a public offense. This subdivision applies

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1

to conversations that occur in a place, and under circumstances, where there exists

2

a reasonable expectation of privacy, including a custody holding area, holding area, or anteroom. This subdivision does not apply to conversations that are inadvertently

3

overheard or that take place in a courtroom or other room used for adjudicatory

4

proceedings.

5 Assem. Bill 1892, 1995-1996 Reg. Sess. (Cal. May 4, 1995) (subdivision (c) omitted). The

6 bill’s language regarding the purpose of the bill also changed. The statement that the

7 amendment would “narrow [the statute’s] scope by providing it applies to persons who

8 eavesdrop on this kind of conversation intentionally and without permission,” was

9 removed, among other deletions and additions. Id.

10

On May 30, 1995, the bill was amended a second time. The third version of the bill

11 clarified that the purpose of the amendment was to ensure subdivision (a) “apply only to

12 eavesdropping by means of an electronic device.” Assem. Bill 1892, 1995-1996 Reg. Sess.

13 (Cal. May 30, 1995). The language of subdivision (a) was amended as follows:

14

(a) Every person who, without permission from all parties to the conversation,

15

eavesdrops on or records by means of an electronic or other device, a conversation,

16

or any portion thereof, between a person who is in the physical custody of a law enforcement officer or other public officer, or who is on the property of a law

17

enforcement agency or other public agency, and that person’s attorney, religious

18 Id. advisor, or licensed physician, is guilty of a felony.

19

On June 13, 1995, the Senate Committee on Criminal Procedure held a hearing on

20 the third version of the bill. The Committee’s analysis of the bill indicated that the

21 amendment “changes the felony provision [subdivision (a)] of eavesdropping law to apply

22 only to eavesdropping by electronic device and adds a wobbler provision [subdivision (b)]

23 prohibiting the intentional non-electronic eavesdropping on a conversation between an in-

24 custody defendant and his/her attorney . . . .” Assem. Comm. on Crim. Proc., Bill Analysis

25 of Assem. Bill 1892, 1995-1996 Reg. Sess., at 2 (Cal. June 3, 1995). The analysis noted

26 that “[t]he purpose of this bill is to prohibit all intentional eavesdropping on conversations

27 between and [sic] in-custody defendant and his/her attorney, religious advisor or licensed

28

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1 physician under circumstance [sic] where there is a reasonable expectation of privacy.” Id.

2 According to the author, the bill “applies only to the narrow circumstances that precipitated

3 its introduction”—Morrow, 30 Cal. App. 4th 1252.

4

Before enactment, the Assembly analysis of the third version of the bill found that

5 it: “1) Removes the intent requirement when eavesdropping is done by electronic means

6 under specified circumstances. 2) Expands eavesdropping law by applying the law to non-

7 electronic but intentional eavesdropping done without permission under specified

8 circumstances.” Assem. Third Reading, Bill Analysis of Assem. Bill 1892, 1995-1996

9 Reg. Sess., at 1 (Cal. 1995). The analysis found that “[t]his statute is intended to protect a

10 person’s Sixth Amendment right to counsel and to clearly prohibit any form of intentional

11 eavesdropping which threatens a person’s right to counsel.” Id. at 2.

12

The third version of the bill was enacted on July 17, 1995. Assem. 1892, 1995-1996

13 Reg. Sess. ch. 129 (Cal. 1995). Section 636(a) was amended again in 2011, adding that

14 violation of subdivision (a) was “punishable by imprisonment pursuant to subdivision (h)

15 of Section 1170.” Assem. 109, 2011-2012 Reg. Sess. ch. 15 (Cal. 2011).

16

The legislative history of § 636 does not expressly or by necessary implication

17 exclude an intent requirement from subdivision (a). Although susceptible to multiple

18 interpretations, the legislative history could be read as imbuing § 636(a) with an intent

19 requirement. The Assembly Committee on Public Safety’s analysis of the first version of

20 the 1995 bill quoted Penal Code § 20 and found that “[c]urrent law already requires that

21 the defendant intentionally eavesdrop and that he or she engage in that activity without

22 permission.” Removal of the word “intentionally” from subdivision (a) in the second

23 version of the bill could thus be viewed as the deletion of unnecessary language. See

24 People v. Sainz, 74 Cal. App. 4th 565, 573 (1999) (“Failure to make changes in a given

25 statute in a particular respect when the subject is before the Legislature, and changes are

26 made in other respects, is indicative of an intention to leave the law unchanged in that

27 respect.”) (quoting People v. Lewis, 21 Cal. App. 4th 243, 248 (1993)). Committee

28 analyses found that the purpose of the 1995 amendments was to prohibit “any form of

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1 intentional eavesdropping which threatens a person’s right to counsel” and “all intentional

2 eavesdropping,” without specifically limiting this purpose to subdivision (b). Lastly, the

3 1995 amendments that added subdivision (b) were aimed solely at addressing the narrow

4 issue before the legislature—eavesdropping through non-electronic means.8

5

ii. General Provision on Mens Rea

6

California Penal Code § 20 is a generally applicable rule on mens rea that applies in

7 this case. In re Jorge M., 23 Cal. 4th at 879. Section 20 provides that “[i]n every crime or

8 public offense there must exist a union, or joint operation of act and intent, or criminal

9 negligence.” It requires “an intent to do the forbidden thing or commit the interdicted act,”

10 but does not require “a specific purpose or intent to violate the law.” Stark, 52 Cal. 4th at

11 392 (quoting People v. Dillon, 199 Cal. 1, 7 (1926)). It requires “wrongful intent.” Id.

12 (emphasis in original). Although not inflexible, “where the penalties imposed are

13 substantial, section 20 can fairly be said to establish a presumption against criminal liability

14 without mental fault or negligence, rebuttable only by compelling evidence of legislative

15 intent to dispense with mens rea entirely.” In re Jorge M., 23 Cal. 4th at 879. This

16 presumption applies here.

17 ///

18 ///

19

20 8 Securus argues that In re Arias, 42 Cal. 3d 667 (1986) establishes that § 636 only prohibits
21 intentional recording or eavesdropping. In this case, the California Supreme Court noted in dictum that “[t]he Privacy Act has been held to proscribe only intentional as opposed to
22 inadvertent overhearing or interception of communications.” Id. at 682 n.14 (citing People
23 v. Buchanan 26 Cal. App. 3d 274, 287 (1972)). This dictum does not decide the issue. Buchanan held only that §§ 631(a) and 632(a), which proscribe “intentionally”
24 eavesdropping, require intentional wiretapping and eavesdropping, Buchanan, 26 Cal.
25 App. 3d at 288. The other cases Securus cites for the proposition that any violation of CIPA must be intentional are similarly inapposite. See People v. Superior Court of Los
26 Angeles Cty., 70 Cal. 2d 123 (1969) (stating in dictum that Cal. Penal Code § 653j, now §
27 632, which proscribed “intentionally” eavesdropping had an intent requirement); People v. Algire, 222 Cal. App. 4th 219 (2013) (holding § 632, which proscribes “intentionally”
28 eavesdropping, has an intent requirement).

15

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1

iii. Severity of Punishment

2

A person who violates § 636(a) “is guilty of a felony punishable by imprisonment

3 pursuant to subdivision (h) of Section 1170.” Cal. Penal Code. § 636(a). Penal Code

4 § 1170(h) provides in relevant part that “a felony punishable pursuant to this subdivision

5 where the term is not specified in the underlying offense shall be punishable by a term of

6 imprisonment in a county jail for 16 months, or two or three years.” A felony is a harsh

7 punishment. As the California Supreme Court discussed in In re Jorge M.,

8

In Staples, [511 U.S. at 618], the United States Supreme Court observed that its own

9

early cases “might suggest that punishing a violation as a felony is simply incompatible with the theory of the public welfare offense.” The high court

10

ultimately found it unnecessary to embrace that view as a definitive rule, but did

11

conclude the harsh potential penalties—up to 10 years’ imprisonment—imposed under the federal law at issue for possession of an unregistered machine gun

12

militated strongly against a construction dispensing with mens rea. This court

13

agreed with Staples’s skepticism about felony punishment for putative public welfare offenses in People v. Coria, [21 Cal. 4th 868, 877 (1999)], observing that

14

manufacturing methamphetamine “is a felony, which is as bad a word as you can

15

give to man or thing.” Such an offense, we concluded, is difficult to characterize as “a mere regulatory statute which imposes light penalties with no damage to

16

reputation.”

17 In re Jorge M., 23 Cal. 4th at 879-80 (internal citations omitted). Felony punishment

18 “reinforces the presumption expressed by section 20 and suggests that correspondingly

19 strong evidence of legislative intent is required to exclude mens rea from the offense.” Id.

20 at 880. This factor weighs against strict liability.

21

iv. Seriousness of Harm to Public

22

“[W]hen a crime’s statutory definition does not expressly include any scienter

23 element, the fact the Legislature intended the law to remedy a serious and widespread

24 public safety threat militates against the conclusion it also intended impliedly to include in

25 the definition a scienter element especially burdensome to prove.” Id. at 881. Plaintiffs

26 argue that subdivision (a) has no intent requirement “likely due to the exponential advance

27

28

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1 of electronic eavesdropping and surveillance technology, as well as the rising public

2 welfare concerns associated with data privacy.” (Doc. No. 101-1 at 14.)

3

In enacting the CIPA, the legislature “declare[d] that advances in science and

4 technology have led to the development of new devices and techniques for the purpose of

5 eavesdropping upon private communications and that the invasion of privacy resulting

6 from the continual and increasing use of such devices and techniques has created a serious

7 threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized

8 society.” Cal. Penal Code § 630. This factor weighs in favor of strict liability as the

9 legislature sought to avoid a serious harm to the public. But it is not clear that strict liability

10 is necessary to avoid this harm. Cf. People v. Simon, 9 Cal. 4th 493, 521 (1995)

11 (“Eavesdropping is not one of that class of crimes that affects public health, welfare or

12 safety for which strict liability is most often imposed without any ingredient of intent.”).

13 To the contrary, other sections of the CIPA prohibiting electronic eavesdropping expressly

14 include an intent element. See Cal. Penal Code §§ 631(a), 632(a).

15

v. Opportunity to Ascertain True Facts

16

“Courts have been justifiably reluctant to construe offenses carrying substantial

17 penalties as containing no mens rea element ‘where dispensing with mens rea would

18 require the defendant to have knowledge only of traditionally lawful conduct.’” In re Jorge

19 M., 23 Cal. 4th at 881 (quoting Staples, 511 U.S. at 615 (“It is unthinkable to us that

20 Congress intended to subject such law-abiding, well-intentioned citizens to a possible ten-

21 year term of imprisonment if what they genuinely and reasonably believed was a

22 conventional semi-automatic weapon turns out to have worn down into or been secretly

23 modified to be a fully automatic weapon.”) (citation omitted)). Under some circumstances,

24 a person may lawfully record conversations. Here, without a mens rea requirement, a

25 person could be liable for violation of § 636(a) without any knowledge that his or her

26 traditionally lawful conduct was proscribed. Or, for that matter, as Plaintiffs urge, without

27 knowledge the conversations were being recorded. Absent knowledge that a conversation

28 between a person in custody and his or her attorney, licensed physician, or religious advisor

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1 was being recorded, the conduct could be entirely innocent. See Coria, 21 Cal. 4th at 880

2 (offense proscribing manufacture of methamphetamine required knowledge of

3 manufactured substance as “[n]ot all acts of chemical synthesis are illegal; only the

4 manufacture of specific controlled substances is prohibited”); King, 38 Cal. 4th at 626 (“It

5 is highly unlikely that the Legislature intended that a person possessing an item listed in

6 section 12020(a)(1) for its lawful, utilitarian purpose, but unaware of the characteristic that

7 makes possession of the item illegal, would nevertheless be guilty of violating section

8 12020(a)(1).”). For example, a court reporter that leaves a courtroom recording system

9 running after a hearing ends could inadvertently capture a conversation between an

10 attorney and his or her client in the courtroom without any knowledge that the conduct was

11 proscribed. This factor weighs against strict liability.

12

vi. Difficulty of Proving Mental State

13

As discussed above, the legislature sought to avoid a serious harm to the public with

14 enactment of CIPA, and the statute should not construed in a manner that would impair its

15 effective enforcement. See In re Jorge M., 23 Cal. 4th at 884-85. But nothing before the

16 court indicates that strict liability is necessary for effective enforcement of § 636(a). The

17 conduct proscribed in § 636(a) does not necessarily present special obstacles to the

18 prosecution in proving a defendant’s mental state. Even if this factor were to weigh in

19 favor of strict liability, however, it is not dispositive. Id. (difficulty of proving mental state

20 factor weighed in favor of strict liability, but did not require it, when scienter requirement

21 of less than actual knowledge alleviated effective enforcement concerns).9

22

vii. Number of Expected Prosecutions

23

“The fewer the expected prosecutions, the more likely the legislature meant to

24 require the prosecuting officials to go into the issue of fault.” In re Jorge M., 23 Cal. 4th

25 at 873 (citation omitted). The CIPA indicates that new devices and technologies allowing

26

27 9 The court does not consider whether § 636(a) requires criminal negligence or actual
28 knowledge as the parties do not address this issue in their briefing.

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1 a person to eavesdrop represent a serious threat to privacy, but is silent about the number

2 of expected prosecutions. Cal. Penal Code § 630. The context of the statute and legislative

3 history of § 636(a) do not indicate whether a high number of prosecutions were expected.

4 This factor is inconclusive.

5

In sum, although § 636(a) “can be characterized as a remedial law aimed at

6 protecting public welfare, its text, history and surrounding statutory context provide no

7 compelling evidence of legislative intent to exclude all scienter from the [statute].” In re

8 Jorge M., 23 Cal. 4th at 887. The presumption against criminal liability without mental

9 fault or negligence provided by Penal Code § 20 is reinforced by the severity of felony

10 punishment and the possibility of proscribing traditionally lawful conduct. Section 636(a)

11 protects against a serious public harm, but not all statutes protecting against serious public

12 harm require strict liability to accomplish this goal. See In re Jorge M., 23 Cal. 4th at 887.

13 Section 636(a) is not an exception to the general rule that a defendant must have wrongful

14 intent to be guilty of a crime.10

15 III. Conclusion

16

Plaintiffs’ motion for summary judgment is denied as § 636(a) is not a strict liability

17 offense and Plaintiffs fail to establish there is no genuine issue of material fact as to whether

18 Securus had the intent necessary to violate the statute.

19

MOTION FOR CLASS CERTIFICATION

20

Also before the court is Plaintiffs’ Renewed Motion for Class Certification Or, In

21 the Alternative, Extension of Time (“renewed motion for class certification”). (Doc. No.

22

23 10 Plaintiffs argue that this case involves civil liability, as it was filed pursuant to § 637.2,
24 not criminal liability. Plaintiffs cite no case, and the court is not aware of any, suggesting
25 that a different standard should apply in these circumstances, where a civil action is filed for violation of an underlying criminal offense. The language of § 637.2 suggests
26 otherwise. Section 637.2 provides that “[a]ny person who has been injured by a violation
27 of this chapter may bring an action against the person who committed the violation.” Cal. Penal Code § 637.2(a) (emphasis added). Plaintiffs allege that Securus was in “violation
28 of” § 636(a).

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1 122.) Securus opposes. (Doc. No. 124.) For the reasons discussed below, the motion is

2 granted in part.

3 I. Background

4

On October 10, 2017, Plaintiffs filed a motion for class certification. (Doc. No. 62.)

5 The court denied Plaintiffs’ motion, finding that Plaintiffs failed to sufficiently identify an

6 ascertainable class as the proposed class may have included anywhere between 22 and

7 thousands of members. (Doc. No. 93.) On April 20, 2018, Securus filed a motion to alter

8 or amend the order denying Plaintiffs’ motion for class certification arguing that, contrary

9 to the court’s order, Securus had produced call logs by the time briefing on Plaintiffs’

10 motion for class certification was complete. (Doc. No. 99.) The court denied Securus’

11 motion, stating that Securus could raise any arguments regarding factual discrepancies in

12 its opposition to Plaintiffs’ renewed motion for class certification. (Doc. No. 127.)

13 II. Legal Standards

14

It is within this court’s discretion to certify a class. Bouman v. Block, 940 F.2d

15 1211, 1232 (9th Cir. 1991). Under Rule 23(a), the class must satisfy four prerequisites:

16 “(1) numerosity of [parties], (2) common questions of law or fact predominate, (3) the

17 named [party’s] claims and defenses are typical, and (4) the named [party] can adequately

18 protect the interests of the class.” Hanon v. Dataproducts, 976 F.2d 497, 508 (9th Cir.

19 1992). In addition to satisfying the requirements of Rule 23(a), Plaintiffs must satisfy at

20 least one of the types of class actions identified in Rule 23(b). Briseno v. ConAgra Foods,

21 Inc., 844 F.3d 1121, 1124 (9th Cir. 2017). Here, Plaintiffs argue that the class satisfies

22 both Rule 23(b)(2) (the class is subject to common policies or unlawful acts, justifying

23 injunctive relief) and Rule 23(b)(3) (questions of law or fact common to the members of

24 the class predominate over any questions affecting only individual members, and a class

25 action is superior to other available methods for the fair and efficient adjudication of the

26 controversy).

27

The party seeking certification bears the burden of showing that each of the four

28 requirements of Rule 23(a), and at least one requirement of Rule 23(b), has been satisfied.

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1 Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 580 (9th Cir. 2010) (en banc), rev’d on other

2 grounds, 564 U.S. 338 (2011). As noted by the Ninth Circuit,

3

When considering class certification under rule 23, district courts are not only at

4

liberty to, but must, perform a rigorous analysis to ensure that the prerequisites of Rule 23(a) have been satisfied. It does not mean that a district court must conduct a

5

full-blown trial on the merits prior to certification. A district court’s analysis will

6

often, though not always, require looking behind the pleadings, even to issues overlapping with the merits of the underlying claims.

7

8 Id. at 581. In making this showing, the plaintiff must submit evidence to support class

9 certification under Rules 23(a) and (b). Doninger v. Pacific Northwest Bell, Inc., 564 F.2d

10 1304, 1308-09 (9th Cir. 1977). If the plaintiff fails to show that all elements of class

11 certification are satisfied, class certification should be denied. Gen. Tel. Co. v. Falcon, 457

12 U.S. 147, 161 (1982).

13 III. Discussion

14

A. Securus’ Initial Objections

15

As an initial matter, Securus argues that the court should not consider the merits of

16 Plaintiffs’ renewed motion for class certification for two reasons. First, Securus argues

17 that Plaintiffs’ renewed motion for class certification is actually a motion for

18 reconsideration of the court’s order denying Plaintiffs’ initial motion for class certification.

19 Securus argues that Plaintiffs present no “new evidence” as the disputed call logs were

20 produced prior to the close of briefing on Plaintiffs’ initial motion for class certification

21 and Plaintiffs simply reargue their previous points. This argument is unpersuasive.

22 Plaintiffs represent, and Securus does not dispute, that Securus did not produce some

23 documents relied upon in the instant motion until October 30, 2017, after Plaintiffs’ initial

24 motion for class certification was filed. (Doc. No. 122-2, Ridley Decl. ¶ 24.) In addition,

25 Plaintiffs represent, and Securus does not dispute, that Securus did not identify what

26 discovery requests its October 30, 2017 supplemental production responded to until

27 November 20, 2017, after the motion for class certification was fully briefed. (Id.)

28

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1

Second, Securus argues that the named Plaintiffs do not have standing to pursue

2 class claims. Securus raises a number of arguments in support of this contention. First,

3 Securus argues that Plaintiffs “produce no competent evidence” that Securus recorded any

4 of their calls. (Doc. No. 124 at 18.) As discussed in the standing analysis of Plaintiffs’

5 motion for partial summary judgment, Plaintiffs produce evidence indicating that Securus

6 recorded Plaintiffs’ calls. Supra Section II.B.2. In its opposition to Plaintiffs’ renewed

7 motion for class certification, Securus makes no specific objections to this evidence.

8

Second, Securus argues there is no evidence that it intentionally recorded any private

9 number calls. As the court held in its prior order denying Plaintiffs’ motion for class

10 certification, this argument is not properly raised in a motion for class certification. (Doc.

11 No. 93 at 2 n.1.)

12

Third, Securus argues there is no evidence that the recordings captured conversations

13 between persons covered by the statute—detainees and attorneys. Securus cites to Plaintiff

14 Elliott’s declaration that his staff and employees use the numbers designated as private for

15 confidential and privileged communications with detainee clients, (Doc. No. 62-38, Elliott

16 Decl. ¶¶ 8-9), and Plaintiffs Romero and Tiscareno’s declarations that they used Securus’

17 phone system for confidential and privileged calls with their attorneys and their attorneys’

18 staff. (Doc. No. 62-41, Romero Decl. ¶¶ 8-9; Doc. No. 62-43, Tiscareno Decl. ¶¶ 8-9.)

19 Securus also cites to an email exchange between the Sheriff’s Office and Securus

20 employees indicating that five probation office numbers may have been erroneously

21 included in a list of numbers designated as private. (Doc. No. 62-28, Exh. 25 at 2-3.)

22

A rigorous review of the evidence indicates that Securus admits to recording

23 detainee calls with telephone numbers belonging to an attorney and registered as private.

24 (Doc. No. 62-38, Elliott Decl. ¶¶ 8-9; Doc. No. 62-4, Exh. 1.) In email, Securus employees

25 repeatedly referred to these recorded calls as “attorney calls.” (Doc. No. 62-4, Exh. 1 at

26 46-48, 62.) Securus presents no evidence (or argument) that people other than an attorney

27 or his or her staff used numbers designated by attorneys as private. An attorney may hire

28 agents, including paralegals and assistants, to engage in confidential communications with

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1 clients. See Cal. Evid. Code § 952. This evidence is sufficient for class certification

2 purposes to establish that Securus recorded calls between detainees and attorneys or their

3 staff. If a probation office or other non-attorney numbers were designated as private and

4 are included in the class list these numbers can be identified and excluded.

5

Lastly, Securus argues there is no evidence of a concrete injury because Securus

6 purged the recordings. As the court previously held, violation of CIPA is the violation of

7 a procedural right granted by statute, sufficient to constitute an injury in fact. (Doc. No.

8 21 at 9) (citing Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016).) “In a class action,

9 standing is satisfied if at least one named plaintiff meets the requirements.” Bates v. United

10 Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007). Plaintiffs present evidence that their

11 detainee-attorney calls were recorded without permission. To the extent Securus argues

12 that it did not violate § 636(a) because it purged the recordings, this argument should be

13 raised in an appropriate motion.

14

B. Class Definition

15

Plaintiffs seek to certify the following class—

16

Every person who was a party to any portion of a conversation between a person

17

who was in the physical custody of a law enforcement officer or other public officer in California, and that person’s attorney, on a telephone number designated or

18

requested not to be recorded, any portion of which was eavesdropped on or recorded

19

[by Defendant Securus Technologies, Inc.]11 by means of an electronic device during the period from July, 10, 2008 to the applicable opt-out date, inclusive (the “Class

20

Period”).

21 (Doc. No. 122-1 at 8.)

22

C. Rule 23(b)(3)

23

Plaintiffs seek class certification pursuant to Rule 23(b)(3). Plaintiffs’ CIPA claims

24 meet the requirements of this rule.

25

26
27 11 At oral argument, Plaintiffs confirmed that the class definition was only intended to reach persons whose communications were eavesdropped on or recorded by Securus. Thus,
28 Plaintiffs agreed to add the bracketed language at the court’s suggestion.

23

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1

1. Predominance

2

Common issues predominate over individual issues in this case. “The predominance

3 analysis under Rule 23(b)(3) focuses on ‘the relationship between the common and

4 individual issues’ in the case and ‘tests whether proposed classes are sufficiently cohesive

5 to warrant adjudication by representation.’” Wang v. Chinese Daily News, Inc., 737 F.3d

6 538, 544 (9th Cir. 2013) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir.

7 1998)). The predominance requirement ensures that “common questions present a

8 significant aspect of the case” such that “there is clear justification”—in terms of efficiency

9 and judicial economy—for resolving those questions in a single adjudication. Hanlon, 150

10 F.3d at 1022 (citation omitted). This requirement is satisfied when a common nucleus of

11 facts and law is the central feature of the litigation, and when the “[p]laintiffs have shown

12 that there are plausible classwide methods of proof available to prove their claims.” Wolph

13 v. Acer Am. Corp., 272 F.R.D. 477, 487 (N.D. Cal. 2011) (citation omitted).

14

Whether Securus recorded calls between detainees and attorneys without their

15 permission is a class-wide question answered by common proof. The common proof

16 offered by Plaintiffs is: (1) a series of email exchanges between the San Diego County

17 Sheriff’s Office and Securus employees indicating that Securus recorded a number of calls

18 with attorney phone numbers designated as private and attached spreadsheets identifying

19 the recorded calls (Doc. No. 62-4, Exh. 1); (2) Securus’ discovery responses identifying

20 detainee-attorney calls that were recorded; and (3) the declaration of Ian Jones, Securus

21 Director of Support Services, stating that (a) Securus indefinitely maintains call detail

22 reports that include the parties to the call, when and where the call took place, the time of

23 initiating the call, and the duration of the call (Doc. No. 38-1, Jones Decl. ¶ 2), (b) Securus

24 indefinitely maintains user activity logs, which show when phone numbers have been

25 designated as private (Id. ¶ 4), and (c) the Sheriff’s Office informed Securus that it recorded

26 calls designated as private. (Id. ¶ 7.)

27

How and why Securus recorded detainee-attorney calls is also a question that may

28 be answered by common proof. The email exchange between the Sheriff’s Office and

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1 Securus indicates that Securus did not know why detainee calls with private numbers were

2 recorded, but in 2014, it invested significant resources in investigating the “root cause” of

3 the issue. (Doc. No. 62-4, Exh. 1.) Assuming Securus identified the “root cause,” the

4 answer should explain how and why the calls were recorded in San Diego County, and

5 whether the recording was intentional.

6

Securus makes numerous arguments in opposition. First, Securus argues that

7 questions about “knowledge and consent” of individual participants to recorded calls will

8 predominate over common questions of fact. Securus presents no evidence suggesting that

9 issues of “knowledge and consent” must be addressed by individual inquiry. Questions

10 about whether individuals knew that their calls were recorded may, for example, be

11 answered by evidence that Securus never played a prompt informing call participants that

12 the call was being recorded when the call involved a private number. Without any evidence

13 that any detainee or attorney ever consented to the recording of their calls, the court need

14 not assume that a detainee or attorney would consent to the recording of such privileged

15 calls. See Reyes v. Educ. Credit Mgmt. Corp., 322 F.R.D. 552, 560-61 (S.D. Cal. 2017),

16 appeal granted, No. 17-80199, 2017 WL 6762227 (9th Cir. Dec. 21, 2017) (“Moreover,

17 [defendant] has not submitted other persuasive evidence of express consent or actual

18 knowledge of recording during the Class Period followed by additional calls. The Court

19 will therefore not presume that the need to resolve issues related to consent will defeat the

20 predominance requirement.”) (quotation marks and citation omitted).

21

Second, Securus argues that the question of whether it intentionally recorded calls

22 will predominate over common questions of fact. Securus does not provide a factual basis

23 for its argument that the answer to this question will require individualized inquiries. As

24 noted above, the evidence before the court suggests the opposite—that common proof may

25 indicate Securus did not know why any of the calls were recorded.

26

Third, Securus argues that a damages award would require individualized inquiries

27 into the severity of any CIPA violation as Penal Code § 637.2 requires award of “the

28 greater” of actual damages or a $5,000 statutory penalty. Section 637.2 provides:

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1

(a) Any person who has been injured by a violation of this chapter may bring an

2

action against the person who committed the violation for the greater of the following amounts: (1) Five thousand dollars ($5,000) per violation. (2) Three times

3

the amount of actual damages, if any, sustained by the plaintiff.

4

…

5

(c) It is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages.

6

A plaintiff may recover a minimum of $5,000 for a violation of the CIPA, or actual 7

8 damages. Here, Plaintiffs seek statutory damages. Securus cites no authority for the

9 proposition that § 637.2 requires a plaintiff to seek actual damages, instead of statutory

damages, if they exceed $5,000. 10

11

Fourth, Securus argues that Plaintiffs produce no evidence of the actual parties to

the call—only the detainee name and a phone number associated with an attorney. (Doc. 12

13 No. 124 at 15 n.6.) This argument was rejected in the standing section above. Supra,

Section III.A. 14

Fifth, Securus argues that over 100 of the calls identified in Exhibit A lasted fewer 15

16 than 90 seconds, with numerous calls lasting even less than 2 seconds. (Doc. No. 124 at

15-16.) Securus argues that “[c]allers may have hung up before speaking with anyone, 17

18 been sent to voicemail, spoken to someone other than an attorney, or experienced a variety

of other scenarios that would not trigger liability.” Id. Participants to a conversation that 19

lasts less than 90 seconds may communicate privileged information. Substantive, 20

21 privileged information may be communicated in only a few seconds. Securus does not

identify how many calls lasted less than a few seconds and identifies only 15 calls that have 22

23 no duration. (Id.) The issue of whether some calls did not connect to an attorney or

24 detainee because they lasted less than a few seconds or had no duration can be resolved on

common proof as the call logs identify the duration of every call. 25

26

2. Superiority

The court previously denied Plaintiffs’ motion for class certification on the ground 27

28 that Plaintiffs failed to present sufficient evidence to show that there was an

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1 administratively feasible manner to determine whether a class action is the superior method

2 for prosecuting Plaintiffs’ claims. (Doc. No. 93 at 4-5.) In their renewed motion, Plaintiffs

3 identify a class with at least 246 members. This evidence is sufficient to demonstrate that

4 a class action is superior to other available methods of litigation and would likely achieve

5 substantial administrative and management efficiencies.

6

“Rule 23(b)(3) requires that a class action be ‘superior to other available methods

7 for fairly and efficiently adjudicating the controversy,’ and it specifically mandates that

8 courts consider ‘the likely difficulties in managing a class action.’” Briseno, 844 F.3d at

9 1227-28 (quoting Fed. R. Civ. P. 23(b)(3)(D)). Thus, concerns about the ascertainability

10 of a class may be addressed in the context of Rule 23(b). Id. See also Pierce v. County of

11 Orange, 526 F.3d 1190, 1200 (9th Cir. 2008) (Rule 23(b) does not offer “a superior method

12 for fair and efficient adjudication in light of expected difficulties identifying class

13 members”).

14

Plaintiffs represent that they have now identified at least 220 attorney and 930

15 detainee class members. First, Plaintiffs argue that a spreadsheet Defendant produced,

16 STI_000004, identifies 698 detainees and 222 attorneys whose calls were recorded without

17 their permission. The parties dispute what STI_000004 represents. 12 The court does not

18

19 12 In its November 28, 2017 supplemental responses, Defendant identified STI_000004 as
20 responsive to Plaintiffs’ request for production of documents “identifying any DETAINEE
21 who was a party to any telephone call to or from a PRIVATE NUMBER between such DETAINEE and an ATTORNEY, any portion of which was recorded by YOUR
22 SYSTEM.” (Doc. No. 122-7, Exh. D at 17.) Plaintiffs argue that Defendant’s November
23 28, 2017 supplemental response confirms that STI_000004 reflects private telephone numbers whose calls were recorded. (Doc. No. 122-1 at 13 n.4.) Securus argues that
24 STI_000004 is not a call log and does not represent any call recordings. (Doc. No. 124 at
25 17.) Instead, Ankur Desai, Director of Call Center Subsidiaries at Securus Technologies, Inc., declares that STI_000004 “reflects some, but not all, active phone numbers designated
26 within Securus as ‘private’ at the time of its creation [in 2014].” (Doc. No. 124-1, Desai
27 Decl. ¶ 3.) Defendant represents that it only produced STI_000004 because it was attached to an email string with content that was otherwise responsive to Plaintiffs’ document
28 request. (Doc. No. 124 at 17.) Neither party attached STI_000004 to their pleadings.

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1 rely on this disputed spreadsheet, which is not included in the moving or opposition papers,

2 in reaching its decision.

3

Second, Plaintiffs identify 232 detainee and 14 attorney class members from the

4 Sheriff’s Office’s13 and Defendant’s14 responses to Plaintiffs’ discovery requests. This

5 evidence is sufficient to establish that the class will likely include hundreds of detainee and

6 attorney members, weighing in favor of class adjudication. In addition, in light of

7 Plaintiffs’ evidence they were not warned that their calls would be recorded, a significant

8 number of class members may not know that their calls were recorded. Thus, a class action

9 is superior to other available methods of litigation and would likely achieve substantial

10 administrative and management efficiencies.

11

D. Rule 23(b)(2)

12

Plaintiffs’ requests for injunctive and declaratory relief meet the requirements of

13 Rule 23(b)(2). Rule 23(b)(2) provides for class certification when “the party opposing the

14 class has acted or refused to act on grounds that apply generally to the class, so that final

15 injunctive relief or corresponding declaratory relief is appropriate respecting the class as a

16 whole.” Fed. R. Civ. P. 23(b)(2). This provision “applies ‘when a single injunction or

17

18

19 13 Plaintiffs represent that a review of documents produced by the Sheriff’s Office in
20 response to Plaintiffs’ third party subpoena produces 93 discrete detainees whose calls with
21 attorneys were recorded without their permission. (Doc. No. 122-1 at 12.) As discussed above, the Sheriff’s Office sent Securus spreadsheets identifying recorded calls between
22 detainees and numbers designated as private. (Doc. No. 62-2, Teel Decl.; Doc. No. 62-4,
23 Exh. 1.) 14 Defendant produced a spreadsheet, “Exhibit A,” in response to Plaintiffs’ interrogatory
24 requesting Defendant “IDENTIFY all PERSONS who were a party to any telephone call
25 conversation made to or from a PRIVATE NUMBER to or from a DETAINEE, any portion of which was recorded by YOUR SYSTEM during the CLASS PERIOD.” (Doc. No. 74-
26 1, Teel Decl. ¶¶ 2, 3.) Exhibit A lists the facility site name, called telephone number, call
27 start and end time, call duration, first and last name of the detainee, and whether the number was flagged as private. (Doc. No. 74-2, Exh. 1 at 20-32.) From this list, Plaintiffs count
28 153 detainees who participated in a call with a telephone number flagged as private.

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1 declaratory judgment would provide relief to each member of the class.’” Wang, 737 F.3d

2 at 544 (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011)).

3

Plaintiffs seek to “enjoin[ ] Securus from eavesdropping on, listening to, recording,

4 disclosing, or using private, confidential, and privileged communications between

5 detainees and their attorneys without permission of all parties” and a court order requiring

6 “Securus to identify, seek, obtain, encrypt, and ultimately destroy at the conclusion of this

7 action all existing recordings in their possession or the possession of third parties to whom

8 they have given access or disclosed unlawfully recorded communications.” (TAC ¶¶ 118-

9 119.) Plaintiffs also seek declaratory relief “declaring Securus’ practice of eavesdropping

10 on, listening to, recording, disclosing, or using private, confidential, and privileged [sic]

11 between detainees and their attorney without permission of all parties unlawful.” (Id. ¶

12 117.)

13

Plaintiffs’ requested relief would address the class as a whole without individualized

14 inquiries. Plaintiffs provide evidence that Securus recorded detainee-attorney calls without

15 their permission. The proposed class includes similarly situated detainees and attorneys

16 who use Securus’ communications system and whose calls were recorded without their

17 permission. Declaratory relief provides the basis for an injunction and statutory damages.

18 An injunction prohibiting Securus from eavesdropping on, listening to, recording,

19 disclosing, or using communications between detainees and their attorneys without their

20 permission would prevent an issue similar to the one presented here from recurring. It

21 would benefit all members of the class.

22

Securus argues that the request for injunctive relief is moot because Plaintiffs

23 Romero and Tiscareno are no longer incarcerated and Securus corrected “the glitch several

24 years ago with no known recurrence since that time.” (Doc. No. 124 at 27.) The court

25 already rejected Securus’ argument that Plaintiffs lack standing as Romero and Tiscareno

26 are no longer incarcerated. (Doc. No. 21 at 9 n.7) (“While Plaintiffs Romero and Tiscareno

27 may no longer be incarcerated, Plaintiff Elliott, as a criminal defense attorney, may require

28 Defendant’s services to communicate with other clients in the future.”). The court also

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1 rejects Securus’ argument that the issue was corrected. “A defendant’s voluntary cessation

2 of allegedly unlawful conduct ordinarily does not suffice to moot a case.” Friends of the

3 Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 174 (2000). “For mootness

4 to apply based on the voluntary cessation of the complained of unlawful behavior, the party

5 must prove that subsequent events make it ‘absolutely clear that the allegedly wrongful

6 behavior could not reasonably be expected to recur.’” Reyes, 322 F.R.D. at 569-70

7 (quoting Id. at 189). Securus does not explain what “the glitch” was, when it was fixed, or

8 why there is no possibility of recurrence. Securus presents no evidence that the issue has

9 been addressed, but simply asserts in its opposition (without supporting declarations) that

10 Securus “corrected” the issue. Securus fails to demonstrate it is absolutely clear the issue

11 will not recur.

12

Securus also argues that Plaintiffs primarily seek monetary damages, not injunctive

13 relief. In cases “where a plaintiff seeks both declaratory and monetary relief, courts may

14 certify a damages-seeking class under Rule 23(b)(3), and an injunction-seeking class under

15 Rule 23(b)(2).” Barrett v. Wesley Fin. Grp., LLC, No. 13CV554-LAB (KSC), 2015 WL

16 12910740, at *7 (S.D. Cal. Mar. 30, 2015) (citing Wang, 737 F.3d at 544). See also Raffin

17 v. Medicredit, Inc., No. CV154912GHKPJWX, 2017 WL 131745, at *10 (C.D. Cal. Jan.

18 3, 2017) (certifying Cal. Penal Code § 637.2 claim for injunctive relief under (b)(2) and

19 the claim for monetary relief under (b)(3)). The court finds it appropriate to certify a class

20 for injunctive relief pursuant to Rule 23(b)(2) because “a single injunction or declaratory

21 judgment would provide relief to each member of the class.” Dukes, 131 S. Ct. at 2557.

22

E. Rule 23(a) Prerequisites

23

1. Numerosity

24

The numerosity requirement is met. Rule 23(a)(1) requires the proposed class be

25 “so numerous that joinder of all members is impracticable.” Although there is no absolute

26 threshold, courts generally find numerosity satisfied when the class includes at least forty

27 members. Gomez v. Rossi Concrete, Inc., 270 F.R.D. 579, 588 (S.D. Cal. 2010); Celano

28 v. Marriott Int’l, Inc., 242 F.R.D. 544, 549 (N.D. Cal. 2007) (“[C]ourts generally find that

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1 the numerosity factor is satisfied if the class comprises 40 or more members and will find

2 that it has not been satisfied when the class comprises 21 or fewer.”). As discussed above,

3 Plaintiffs identify 246 potential class members. Joinder of this many plaintiffs would be

4 impracticable.

5

2. Commonality

6

The commonality requirement is met. Rule 23(a)(2) requires a party to demonstrate

7 that there are “questions of law or fact common to the class.” “So long as there is ‘even a

8 single common question,’ a would-be class can satisfy the commonality requirement of

9 Rule 23(a)(2).” Wang, 737 F.3d at 544 (citing Dukes, 564 U.S. 338)). “The commonality

10 preconditions of Rule 23(a)(2) are less rigorous than the companion requirements of Rule

11 23(b)(3),” that is, the “predominance” inquiry that requires that “common questions

12 ‘present a significant aspect of the case.’” Hanlon, 150 F.3d at 1022 (citation omitted). As

13 discussed above, common issues dominate this litigation.

14

3. Typicality

15

The named Plaintiffs’ claims are typical of the class. Like all class members,

16 Plaintiffs’ confidential calls were recorded by Securus without their permission. Securus

17 argues that the named Plaintiffs declared that they did not receive a warning or phone

18 prompt indicating that their calls would be recorded, but there is evidence of “a ‘generic

19 prompt’ on phone calls not designated as private that ‘states the call is being recorded.’”

20 (Doc. No. 124 at 22.) “Because Plaintiffs have produced no evidence that the accidentally

21 recorded calls also failed to include this generic prompt, their assertions that they did not

22 receive the prompt is actually strong evidence that their calls were not recorded.” (Id.)

23 (emphasis in original.) Securus’ argument is unpersuasive. Plaintiffs allege that Securus

24 recorded calls with telephone numbers that were designated as private. Securus argues that

25 a “generic prompt” played on calls not designated as private. Whether the “generic

26 prompt” played may indicate whether a telephone number was designated as private, but

27 not whether it was recorded.

28 ///

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1

4. Adequacy

2

The named Plaintiffs and class counsel will fairly and adequately protect the interests

3 of the class. As discussed above, Plaintiffs’ claims are typical of the class. Class counsel

4 support their motion with declarations detailing their qualifications and experience with

5 class actions. (Doc. Nos. 62-45, 62-48, 122-2, 122-8, 122-13.)

6

Securus argues that Plaintiffs’ new lawyers do not have experience representing

7 classes. The declarations of Plaintiffs’ counsel indicate that, as a whole, they have

8 extensive experience both defending against and representing classes. (See, e.g., Doc. No.

9 62-45, Marron Decl.).

10

Securus argues that Plaintiffs’ counsels’ representation thus far demonstrates their

11 inadequacy, citing to missed deadlines and other unfavorable rulings. Counsels’ actions

12 do not rise to the level of disqualifying them from representing a class. Cf. Wrighten v.

13 Metropolitan Hospitals, Inc., 726 F.2d 1346, 1352 (9th Cir. 1984) (denying class

14 certification in part because counsel’s “pleadings and interrogatories had an ‘assembly line’

15 quality that suggested something less than the forthright and vigorous approach required

16 of counsel in class actions”).

17

Lastly, Securus argues that the attorneys from Foley create an appearance of divided

18 loyalties because the law firm defends against class actions.15 Securus cites to cases in

19 which Foley represented “a competitor of Securus” who also provides inmate calling

20

21

22

23

24 15 Securus requests the court take judicial notice of public court documents filed in matters
25 litigated by Plaintiffs’ counsel. (Doc. No. 124-3.) The court grants this request as the filings are not subject to reasonable dispute because they are generally known or are
26 capable of accurate and ready determination. See Fed. R. Evid. 201(b); Lee v. City of Los
27 Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001); United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003) (courts may take judicial notice of “the records and reports of administrative
28 bodies”).

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1 services for correctional facilities.16 These cases do not involve allegations relating to the

2 recording of telephone calls.17 The court finds counsel adequate to serve as a class counsel.

3

F. Certification of All Claims

4

Securus argues that Plaintiffs failed to present evidence to support class certification

5 for claims other than their CIPA claims. In addition to their CIPA claims, Plaintiffs assert

6 five other causes of action in the operative Third Amended Complaint: (1) unfair

7 competition, violation of Cal. Bus. & Prof. Code §§ 17200, et seq.; (2) concealment; (3)

8 fraud; (4) negligence; and (5) unjust enrichment. In their reply brief, Plaintiffs argue that

9 all of their other claims “in part stem from Securus’ violation of CIPA.” (Doc. No. 128 at

10 13.)

11

The court agrees with Securus. A court may certify a class for specific claims,

12 issues, or defenses. See Fed. R. Civ. P. 23(c)(1)(B) (“An order that certifies a class action

13 must define the class and the class claims, issues, or defenses…”). Plaintiffs cite no

14 authority for the proposition that claims may be certified when they stem “in part” from a

15 certified claim. Nor do Plaintiffs discuss in their motion whether their other claims will

16 require individualized inquiries, such as inquiries into damages, reliance, or

17 misrepresentations. See, e.g., Mazza v. Am. Honda Motor Co., 666 F.3d 581, 596 (9th Cir.

18 2012). In their reply brief, Plaintiffs raise a handful of “examples” of possible common

19 issues without supporting evidence. (Doc. No. 128 at 13.) Plaintiffs fail to meet their

20

21

22 16 Securus argues that Foley counsel in this matter also represented Global Tel*Link,
23 another company that provides inmate calling services for correctional facilities. (Doc. No. 124-3, Request for Judicial Notice at 2, 18.)
24 17 Securus’ citation to a reply brief filed in an unrelated case that argued the Foley counsel
25 was not adequate counsel is also unpersuasive. In this case, the court rejected the plaintiffs’ motion and argument. Gonzalez et al v. CoreCivic, Inc., 17cv2573 JLS (NLS), Doc. No.
26 44 at 10 (S.D. Cal. April 4, 2018) (“The Court is under no illusion as to the stakes of this
27 Motion. Gonzalez Plaintiffs filed a nearly identical cause of action as the Owino Plaintiffs, seek to consolidate the cases, and wrest control of interim class counsel from the Owino
28 Plaintiffs.”).

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1 burden to establish that the requirements of Rule 23(a) and (b)(3) are satisfied for claims

2 other than their CIPA claims.

3 IV. Conclusion

4

Plaintiffs’ requests for monetary damages under CIPA are certified pursuant to Rule

5 23(b)(3) and their requests for injunctive and declaratory relief are certified pursuant to

6 Rule 23(b)(2). The following class is certified—

7

Every person who was a party to any portion of a conversation between a person

8

who was in the physical custody of a law enforcement officer or other public officer in California, and that person’s attorney, on a telephone number designated or

9

requested not to be recorded, any portion of which was eavesdropped on or recorded

10

by Defendant Securus Technologies, Inc. by means of an electronic device during the period from July, 10, 2008 to the applicable opt-out date, inclusive (the “Class

11

Period”).

12 The Law Office of Robert L. Teel, the Law Offices of Ronald A. Marron, APLC, and Foley

13 & Lardner, LLP are appointed as class counsel and Plaintiffs Juan Romero, Frank

14 Tiscareno, and Kenneth Elliot are appointed as class representatives.

15

IT IS SO ORDERED.

16

17 DATED: November 21, 2018 18 19

JEFFREY T. MILLER United States District Judge

20

21

22

23

24

25

26

27

28

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1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 JUAN ROMERO; FRANK TISCARENO;

12

and KENNETH ELLIOTT, on behalf of themselves and all others similarly

13 situated,

14

Plaintiffs,

15 v.

Case No.: 16cv1283 JM (MDD)
ORDER GRANTING DEFENDANT’S MOTION FOR STAY PENDING APPEAL

16 SECURUS TECHNOLOGIES, INC.,

17

Defendant.

18

19

Defendant Securus Technologies, Inc. (“Securus”) moves the court for a stay

20 pending the Ninth Circuit’s resolution of its Federal Rule of Civil Procedure 23(f) appeal.

21 (Doc. No. 160.) Plaintiffs oppose. (Doc. No. 163.) For the reasons discussed below, the

22 court grants Securus’ motion to stay.

23

BACKGROUND

24

The background facts are well known to the court and parties and are not repeated

25 here. On November 21, 2018, the court certified a statewide class for Plaintiffs’ California

26 Invasion of Privacy Act (“CIPA”) claims. (Doc. No. 141.) On December 5, 2018, Securus

27 filed a Rule 23(f) petition for appeal of the court’s class certification order. In the petition,

28 Securus argued that review was warranted because the class certification order presents

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1 “unsettled and fundamental issue[s] of law” and “manifest error.” In its petition for appeal,

2 Securus sought review of three “fundamental questions” on the court’s class certification

3 order: (1) whether the issue of intent presents a “common question” for all class members,

4 (2) whether class litigation is superior to other forms of litigation, and (3) whether the court

5 had the authority to grant Plaintiffs’ motion for class certification after it denied Plaintiffs’

6 first motion for class certification. Petition for Rule 23(f) Appeal, Doc. No. 1-2, No. 18-

7 80181. Securus also argued that this court “committed a manifest and substantial error

8 regarding its jurisdiction” because Plaintiffs failed to present evidence of improperly

9 recorded calls after 2014. Id. On December 5, 2018, Plaintiffs also filed a petition for

10 review of the court’s denial of their request to certify a class for Plaintiffs’ remaining

11 claims. On February 26, 2019, the Ninth Circuit denied Plaintiffs’ petition for an appeal.

12 (Doc. No. 155.) On February 27, 2019, the Ninth Circuit granted Securus’ petition for an

13 appeal. (Doc. No. 156.)

14

LEGAL STANDARDS

15

An appeal from a class certification order does not stay proceedings in the district

16 court unless the district judge or the court of appeals so orders. Fed. R. Civ. P. 23(f).

17 Pursuant to Federal Rule of Appellate Procedure 8, this court retains jurisdiction to order a

18 stay pending appeal of its order. The court has broad discretion to stay proceedings. Landis

19 v. N. American Co., 299 U.S. 248, 254 (1936). “The party requesting a stay bears the

20 burden of showing that the circumstances justify an exercise of that discretion.” Nken v.

21 Holder, 556 U.S. 418, 433-34 (2009). Accord Landis, 299 U.S. at 255.

22

The Ninth Circuit has not articulated a specific standard for evaluating a proposed

23 stay pending decision of a Rule 23(f) appeal. Most district courts in this circuit apply the

24 standard enumerated in Nken v. Holder, 556 U.S. 418 (2009) and Hilton v. Braunskill, 481 25 U.S. 770, 776 (1987).1 The court applies this standard as there is substantial overlap

26

27

28

1 A minority of district courts in this circuit hold that the Nken and Hilton test applies “only when a party seeks the stay of execution of a judgment or order that modifies the status

2

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1 between the tests, the outcome is the same under either standard, and the parties only

2 reference the Nken and Hilton test. This four-factor test mirrors the factors considered for

3 a request for injunctive relief. Nken, 556 U.S. at 433-34. The court considers: “(1) whether

4 the stay applicant has made a strong showing that he is likely to succeed on the merits;

5 (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of

6 the stay will substantially injure the other parties interested in the proceeding; and

7 (4) where the public interest lies.” Id. at 434 (quoting Hilton, 481 U.S. at 776). The first

8 two factors are the most critical. Nken, 556 U.S. at 434. In weighing the four factors,

9 courts use a flexible “sliding scale” approach, “so that a stronger showing of one element

10 may offset a weaker showing of another.” Leiva-Perez v. Holder, 640 F.3d 962, 964-66

11 (9th Cir. 2011).

12

DISCUSSION

13 A. Likelihood of Success on the Merits

14

“It is not enough that the chance of success on the merits be better than negligible . . .

15 more than a mere possibility of relief is required.” Id. (quotations and citation omitted).

16 Nken, 556 U.S. at 434. The Ninth Circuit has explained that the first factor does not require

17 a party seeking a stay to demonstrate that it is more likely than not to prevail on its appeal.

18

19

20

quo pending the resolution of the correctness of that order or judgment by the appellate court.” Finder v. Leprino Foods Co., No. 113CV02059AWIBAM, 2017 WL 1355104, at

21 *2 (E.D. Cal. Jan. 20, 2017) (citing Consumer Cellular Inc. v. ConsumerAffairs.com, 2016

22

WL 7238919, *3-4 (D. Or. Sept. 26, 2016); American Hotel & Lodging Assn. v. City of Los Angeles, 2015 WL 10791930, *3 (C.D. Cal. Nov. 5, 2015)). Many of these courts

23 apply the Landis v. North American Co., 299 U.S. 248 (1936) factors instead. See id. In

24

Landis, the Supreme Court enumerated the factors a court should consider when deciding whether to stay an action pending the outcome of an independent proceeding. Landis,

25 299 U.S. 248. These factors include: “[1] the possible damage which may result from the

26

granting of a stay, [2] the hardship or inequity which a party may suffer in being required to go forward, and [3] the orderly course of justice measured in terms of the simplifying or

27 complicating of issues, proof, and questions of law which could be expected to result from

28

a stay.” Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005) (citing CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962)).

3

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1 Leiva-Perez, 640 F.3d at 968. Instead, as long as the equities tip sharply in support of a

2 stay, it is enough that there is “a substantial case for relief on the merits.” Id. This burden

3 can be met by demonstrating a “reasonable probability” or “fair prospect” of success, “a

4 substantial case on the merits,” or that “serious legal questions are raised.” Id. (internal

5 quotations and citations omitted).

6

Securus argues that it has met this standard because in granting its Rule 23(f) petition

7 for appeal, the Ninth Circuit implicitly found that this case presented “an unsettled and

8 fundamental issue of law” or “manifest error.” (Doc. No. 160-1 at 6) (quoting Chamberlan

9 v. Ford Motor Co., 402 F.3d 952, 959 (9th Cir. 2005).)2 Plaintiffs argue that Securus must

10 also demonstrate that it is likely to succeed on the substantive merits of its appeal but fails

11 to do so. (Doc No. 163) (citing Gray v. Golden Gate Nat. Recreational Area, No. C 08-

12 00722 EDL, 2011 WL 6934433, at *1 (N.D. Cal. Dec. 29, 2011) (“Looking to the

13 likelihood of success on the merits, the Court must consider both the likelihood that the

14 Ninth Circuit will grant Defendants’ Rule 23(f) petition, and the likelihood that the Ninth

15 Circuit will agree with Defendants on the substantive merits.”).)

16

The Ninth Circuit’s acceptance of Securus’ Rule 23(f) petition for appeal

17 demonstrates that serious legal questions are at issue. Although the Ninth Circuit’s order

18 does not indicate the basis for its decision, it cites to Chamberlan. (Doc. No. 156.) In

19 Chamberlan, the Ninth Circuit held that Rule 23(f) review of a class certification order is

20 “most appropriate when: (1) there is a death-knell situation for either the plaintiff or

21 defendant that is independent of the merits of the underlying claims, coupled with a class

22 certification decision by the district court that is questionable; (2) the certification decision

23 presents an unsettled and fundamental issue of law relating to class actions, important both

24 to the specific litigation and generally, that is likely to evade end-of-the-case review; or

25 (3) the district court’s class certification decision is manifestly erroneous.” Chamberlan,

26 402 F.3d at 959. The court emphasized that “Rule 23(f) review should be a rare

27

28 2 All page citations in this order refer to those generated by the court’s CM/ECF system.

4

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1 occurrence,” id. at 955, and such petitions “should be granted sparingly.” Id. at 959. Each

2 of the bases for granting a petition for appeal identified in Chamberlan suggest that serious

3 legal questions are raised. See Reyes v. Educ. Credit Mgmt. Corp., No. 15cv628 BAS

4 (AGS), 2018 WL 1316129, at *1 (S.D. Cal. Mar. 13, 2018) (“The grant of the [Rule 23(f)]

5 petition satisfies the first factor for a stay and also alters the calculus of the harms that

6 Defendant faces if proceedings in this Court proceed.”).

7

Furthermore, the court’s order presented an issue of first impression—the intent

8 requirement of Cal. Penal Code § 636(a). Securus petitioned the Ninth Circuit for review,

9 among other issues, on whether this intent requirement presents a common question to all

10 class members or will require individualized inquiry. Petition for Rule 23(f) Appeal, Doc.

11 No. 1-2, No. 18-80181. The court’s ruling on the intent requirement of § 636(a) is

12 intertwined with that question.3 District courts in this circuit often find that serious legal

13 questions are presented when novel issues or matters of first impression are raised. See,

14 e.g., Morse v. Servicemaster Glob. Holdings, Inc., No. C 08-03894, 2013 WL 123610, at

15 *3 (N.D. Cal. Jan. 8, 2013) (“Often a ‘substantial case’ is one that raises genuine matters

16 of first impression within the Ninth Circuit.”); Pena v. Taylor Farms Pac., Inc., No. 2:13-

17 cv-01282-KJM-AC, 2015 U.S. Dist. LEXIS 115718, at *7 (E.D. Cal. Aug. 27, 2015) (“And

18 if the Ninth Circuit has identified an unsettled and fundamental issue of law, the defendants

19 have met their burden to show their appeal raises ‘serious legal questions.’”). This factor

20 weighs in Securus’ favor as its petition presents serious legal questions.

21 B. Irreparable Injury to Movant

22

A sufficient showing of irreparable harm is “a necessary but not sufficient condition

23 for the exercise of judicial discretion to issue a stay.” Leiva-Perez, 640 F.3d at 965.

24 “[S]imply showing some possibility of irreparable injury . . . fails to satisfy the second

25

26

3 At oral argument, Securus affirmed that a systemwide computer glitch caused the calls at issue to be recorded, as it has previously represented. Securus, somewhat

27 counterintuitively, now suggests on appeal that the question of intent will need to be

28

determined by individual proof, even though the court determined this threshold issue of mens rea on a classwide basis in Securus’ favor.

5

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1 factor.” Nken, 556 U.S. at 434-35 (quotations and citation omitted). Rather, the movant

2 must show that irreparable harm is likely or probable. Leiva-Perez, 640 F.3d at 968.

3

This factor supports a stay. First, the prospect of substantial, unrecoverable time and

4 resources spent on class discovery weighs in Securus’ favor. District courts have found

5 irreparable harm probable where an appeal may result in decertification of the class,

6 thereby resulting in a substantial waste of time and resources. See, e.g., Pena, 2015 WL

7 5103157, at *4 (pretrial costs may be irreparable harm “when granting a motion to stay
8 would avoid substantial, unrecoverable, and wasteful discovery costs,” or “when the costs
9 would impose ‘serious burdens’ that an appeal would avoid”); Senne v. Kansas City Royals 10 Baseball Corp., No. 14-CV-00608-JCS, 2017 WL 5973487, at *3 (N.D. Cal. May 5, 2017) 11 (“Should the Ninth Circuit reverse this Court’s . . . Order on certification of . . . the Rule 12 23(b) California Class, Defendants will suffer substantial harm if this action is not stayed
pending appeal as they will have devoted very substantial time and resources on the 13
litigation, particularly with respect to the completion of discovery, dispositive motions and 14 trial preparation on class claims.”); Brown v. Wal-Mart Stores, Inc., No. 5:09-CV-0333915 EJD, 2012 WL 5818300, at *4 (N.D. Cal. Nov. 15, 2012). On the other hand, courts have 16 found routine discovery and litigation costs that are unavoidable regardless of the outcome 17 of the appeal do not amount to irreparable harm. See e.g., Amaro v. Gerawan Farming,
18 Inc., No. 114CV00147DADSAB, 2016 WL 10679467, at *3 (E.D. Cal. Nov. 14, 2016)
19 (finding no irreparable harm when defendants failed to identify significant types of

20 discovery relevant to plaintiffs’ appealed claims but not their remaining claims); Bradberry

21 v. T-Mobile USA, Inc., No. C 06-6567 CW, 2007 U.S. Dist. LEXIS 58801, at *11-12 (N.D.

22 Cal. Aug. 2, 2007) (stating that a stay would be appropriate if discovery were burdensome

23 but “[t]he cost of some pretrial litigation does not constitute an irreparable harm to

24 Defendant”); Monaco v. Bear Stearns Companies, Inc., No. CV0905438SJOJCX, 2012

25 WL 12506860, at *4 (C.D. Cal. Dec. 5, 2012).

26

Here, Plaintiffs seek class discovery on a wide range of issues, including class

27 contact information, all 64 facilities Securus operates in, and identification of potential 28 class members, among other issues. (Doc. No. 160-2, Exh. A at 8-11; Doc. No. 160-3,

6 16cv1283 JM (MDD)

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1 Exh. B at 6-20.) Plaintiffs argue that the burden of routine discovery does not amount to 2 irreparable harm, Plaintiffs’ individual claims must be litigated regardless of the outcome

3 of the appeal, and individual and class discovery may overlap extensively. But the parties

4 dispute whether Plaintiffs are entitled to discovery on the merits of their individual claims.

5 Moreover, the discovery Plaintiffs currently seek is primarily focused on class issues. (See

6 Doc. No. 160-2, Exh. A at 8-11; Doc. No. 160-3, Exh. B at 6-20.) Such discovery would

7 likely involve substantial, unrecoverable costs if the Ninth Circuit reverses the court’s class

8 certification order. See Pena, 2015 WL 5103157, at *4.4

9

Second, class notice may unnecessarily damage Securus’ reputation, as Securus

10 argues. (Doc. No. 160-1 at 9.) Any such damage would be completely unnecessary, 11 Securus contends, if the class is decertified. Plaintiffs contend that this argument is 12 premature because the parties have not yet requested approval of a class notice. But they
do not dispute that the class will need to be notified in a timely manner. “Aside from the 13
heightened emotion and awareness of the lawsuit that notice would bring, such notice could 14 also cause potential class members to hire attorneys to assist them in making a decision 15 whether or not to opt out of the class; whereas the Ninth Circuit ultimately might rule they
16 should not be included in the class.” Willcox v. Lloyds TSB Bank, PLC, No. 13-00508

17 ACK-RLP, 2016 U.S. Dist. LEXIS 28959, at *19 (D. Haw. Mar. 7, 2016). Accord Reyes

18 v. Educ. Credit Mgmt. Corp., No. 15cv628 BAS (AGS), 2017 WL 4640418, at *4 n.1 (S.D.

19 Cal. Oct. 17, 2017).

20

Without citing any authority, Plaintiffs argue that Securus should have moved for a

21 stay earlier. This argument is unpersuasive as the likelihood of success and potential harm

22 to Securus increased after the Ninth Circuit granted Securus’ Rule 23(f) petition.

23 C. Substantial Injury to Other Parties

24

Plaintiffs argue that they will be irreparably injured if a stay is granted but fail to

25 identify any irreparable harm. First, Plaintiffs argue that a stay will result in undue delay

26

27

28

4 Securus argues that the parties will have to incur the cost of experts on class issues but does not identify any specific issues requiring expert testimony. (Doc. No. 160-1 at 8.)

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1 of discovery. Plaintiffs argue that they have not received any discovery since the first phase

2 of discovery ended in September 2017. As time passes, Plaintiffs argue, witnesses’

3 memories fade and employees leave Securus. Plaintiffs will suffer little, if any, harm on

4 this point. Witnesses’ memories may fade with time, but Plaintiffs do not identify any key

5 witnesses whose testimony they are concerned about or any other specific evidence that

6 may be less valuable at a later time.

7

Second, Plaintiffs argue that Securus may not supplement its discovery responses.

8 Plaintiffs argue that Securus provided late supplemental responses in the past and recently

9 failed to update its responses when a potential class member reached out. The court sees

10 no connection between Securus’ willingness to provide timely supplemental responses and

11 the granting of a stay.

12

Lastly, Plaintiffs argue that evidence will likely be destroyed if a stay is granted.

13 Plaintiffs argue that Securus previously destroyed call recordings and may still be

14 destroying evidence under its file deletion protocols. As Securus points out, Judge Dembin

15 previously rejected the argument that Securus’ purge of call recordings presents a danger

16 of spoliation. In denying Plaintiffs’ motion for a preservation order, Judge Dembin found

17 that the purge occurred years before this case was filed and that he had “no concern, based

18 upon this record, for the continuing existence and maintenance of the integrity of the

19 evidence in question.” (Doc. No. 42 at 2-3.) The court agrees with Judge Dembin on this

20 matter as Plaintiffs present no other evidence of spoliation.

21

Plaintiffs also argue that third parties may destroy evidence. Plaintiffs represent that

22 some law enforcement agencies have said they will not implement litigation holds or search

23 for responsive documents. In July 2017, Plaintiffs served subpoenas on the San Diego

24 District Attorney’s Office (the “SDDA”), the Riverside County Sheriff’s Office (the

25 “Riverside Sheriff”), and the United States Attorney’s Office for the Central District of

26 California (the “USACAC”). (Doc. No. 163-1, Teel Decl. ¶ 4.) The SDDA confirmed that

27 it was conducting a diligent and thorough search for responsive recordings. (Id. ¶¶ 10, 11;

28 Doc. No. 163-9, Exh. G.) Plaintiffs do not indicate whether the Riverside Sheriff is

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1 complying with the subpoena. The only agency to assert that it will not comply is

2 USACAC. On August 10, 2017, USACAC stated that it could not comply with Plaintiffs’

3 subpoena because Plaintiffs’ counsel failed to comply with the applicable Touhy

4 regulations, which govern discovery from the Department of Justice, and because the

5 federal government is not a “person” within the meaning of Federal Rule of Civil Procedure

6 45 and thus cannot be served with a subpoena under that rule. (Doc. No. 163-3, Exh. A at

7 2-3.) On the current record, Plaintiffs’ counsel made no attempt to comply with the Federal

8 Rules of Civil Procedure or Touhy regulations. (See Doc. No. 163-4, Exh. B.) Instead,

9 Plaintiffs’ counsel sought to meet and confer and proposed that USACAC only search its

10 open, instead of archived, files. (Id.) USACAC declined to place a litigation hold or search

11 for documents. (Doc. No. 163-5, Exh. C at 2.) This exchange occurred over a year and a

12 half ago. On the record before the court, Plaintiffs have taken no other action since that

13 time. Plaintiffs fail to identify any facts suggesting that evidence may be destroyed despite

14 their diligent efforts.

15

Lastly, a stay may benefit class members as it would protect against the possibility

16 of unnecessary disclosure of personal information and avoid any confusion caused by

17 issuing a class notice that may later need to be revised or withdrawn. See Brown, 2012

18 WL 5818300, at *4 (class members “face a likelihood of harm should a stay not issue”

19 because sending class notice risks confusing class members and implicates privacy

20 interests).

21

In sum, weighing the parties’ prospective harm if a stay is granted, the balance tips

22 sharply in Securus’ favor.

23 D. Public Interest

24

The public interest weighs in favor of granting a stay. Although the public has an

25 interest in vindicating invasions of privacy, as Plaintiffs argue, the public also has an

26 interest in efficient use of judicial resources. See id. at *5. Rule 23(f) petitions are “granted

27 sparingly.” Chamberlan, 402 F.3d at 959. Staying this case pending appeal would “ensure

28 the proper resolution of the important issues raised in this case by preventing potentially

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1 wasteful work on the part of the court and the parties while the Ninth Circuit considers the

2 serious legal question raised by Defendant’s Rule 23(f) petition.” Brown, 2012 WL

3 5818300, at *5 (quotation and citation omitted).

4

CONCLUSION

5

Securus’ motion for a stay is granted as its Rule 23(f) petition presents serious legal

6 questions and the balance of harm tips sharply in its favor. This motion is granted without

7 prejudice to the filing of an application to lift the stay partially or in its entirety if future

8 circumstances warrant.

9

IT IS SO ORDERED.

10 DATED: April 17, 2019 11 12

JEFFREY T. MILLER United States District Judge

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10 16cv1283 JM (MDD)

 
 Romero v. Securus Technologies, Inc., Not Reported in Fed. Supp. (2018) 2018 WL 1782926

2018 WL 1782926 Only the Westlaw citation is currently available.
United States District Court, S.D. California.
Juan ROMERO, Frank Tiscareno, and Kenneth Elliot, Plaintiffs, v.
SECURUS TECHNOLOGIES, INC., Defendant.
CASE NO. 16cv1283 JM (MDD) |
Signed 04/12/2018
Attorneys and Law Firms
Michael Houchin, Adam Belsey, Ronald Marron, William Bradford Richards, Jr., Law Offices of Ronald A. Marron, APLC, San Diego, CA, Robert L. Teel, Law Office of Robert L. Teel, Seattle, WA, for Plaintiffs.
Adam R. Fox, Squire Patton Boggs (US) LLP, Los Angeles, CA, for Defendant.

Filed on February 8, 2017, the Third Amended Complaint (“TAC”) alleges six causes of action: (1) invasion of privacy, violation of Cal. Penal Code § 636; (2) unfair competition, violation of Cal. Bus. & Prof. Code §§ 17200, et seq.; (3) concealment; (4) fraud; (5), negligence; and (6) unjust enrichment. Plaintiffs assert jurisdiction pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d); and seek to bring these claims on behalf of the following class:
Every person who was a party to any portion of a conversation between a person who was in the physical custody of a law enforcement officer or other public officer in California, and that person’s attorney, on a telephone number designated or requested not to be recorded, any portion of which was eavesdropped on or recorded by means of an electronic device during the period from July 10, 2008 to the applicable opt-out date, inclusive (the “Class Period”).

ORDER DENYING MOTION FOR CLASS CERTIFICATION
Hon. Jeffrey T. Miller, United States District Judge *1 Pursuant to Fed.R.Civ.P. 23, Plaintiffs Juan Romero, Frank Tiscareno, and Kenneth Elliot (“Plaintiffs”) move for class certification. Defendant Securus Technologies, Inc. (“Securus”) opposes the motion. Pursuant to L.R. 7.1(d)(1), the court finds the matters presented appropriate for resolution without oral argument. For the reasons set forth below, the court denies the motion for class certification without prejudice, subject to a further showing.
BACKGROUND

Plaintiffs Juan Romero and Frank Tiscareno, two former inmates in the custody of the San Diego County Sheriff (“Sheriff”), and Kenneth Elliot, a criminal defense attorney, allege that Securus surreptitiously recorded privileged attorney/client telephonic communications. Securus is an alleged corporation incorporated in Delaware with its principal place of business in Dallas, Texas.
Securus is in the business of providing inmate communication services and investigative technologies. (ECF 17-6). Securus serves about 65 correctional facilities in California. As part of its Secure Call Platform, attorneys may provide Securus with their telephone numbers in order to ensure that an attorney’s conversation with a detainee would be placed in a “Do not Record” database and not recorded.
In 2014, the San Diego Sheriff’s Department (“SDSD”) learned that certain telephone numbers it had designated as private (i.e., attorney/ client communications) had been “randomly recorded.” (ECF 62.7). Securus then attempted to determine why the private calls were being recorded. Because the recording of certain private calls was random, Securus attempted to troubleshoot the issue and to
1

Romero v. Securus Technologies, Inc., Not Reported in Fed. Supp. (2018) 2018 WL 1782926

reproduce the problem.
On or about July 2, 2014, SDSD requested that Securus delete and purge the recorded conversations. (ECF 62-21). Securus then deleted the recordings. Notably, for purposes of this motion, the parties represent that the conversations were accidentally, and not intentionally, recorded.1
*2 Plaintiffs Romero and Tiscareno were in SDSD’s detention facilities at various times between August 2012 and May 2016. These plaintiffs attach an email to their declarations indicating that their attorney’s phone number had been recorded at some point in time between February 2013 and September 2015. Plaintiffs Romero and Tiscareno believe that their conversations were, or may have been, among those inappropriately recorded. Plaintiff Elliot refers to the email listing his telephone number as one of those surreptitiously recorded conversations.
In an opposed motion, Plaintiffs now move for class certification.
DISCUSSION

the class satisfies both Rule 23(b)(2) (the class is subject to common policies or unlawful acts, justifying injunctive relief) and Rule 23(b)(3) ( questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy).
The party seeking certification bears the burden of showing that each of the four requirements of Rule 23(a), and at least one requirement of Rule 23(b), has been satisfied. Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 580 (9th Cir. 2010) (en banc), rev’d on other grounds, 564 U.S. 338 (2011). As noted by the Ninth Circuit,

When

considering

class

certification under rule 23, district

courts are not only at liberty to, but

must, perform a rigorous analysis

to ensure that the prerequisites of

Rule 23(a) have been satisfied. It

does not mean that a district court

must conduct a full-blown trial on

the merits prior to certification. A

district court’s analysis will often,

though not always, require looking

behind the pleadings, even to issues

overlapping with the merits of the

underlying claims.

Legal Standards It is within this court’s discretion to certify a class. Bouman v. Block, 940 F.2d 1211, 1232 (9th Cir. 1991). Under Rule 23(a), the class must satisfy four prerequisites:
(1) numerosity of [parties], (2) common questions of law or fact predominate, (3) the named [party’s] claims and defenses are typical, and (4) the named [party] can adequately protect the interests of the class.
Hanon v. Dataproducts, 976 F.2d 497, 508 (9th Cir. 1992). In addition to satisfying the requirements of Rule 23(a), Plaintiff must satisfy at least one of the types of class actions identified in Rule 23(b). Here, Plaintiffs argue that

Id. at 581. In making this showing, the plaintiff must submit evidence to support class certification under Rules 23(a) and (b). Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1308-09 (9th Cir. 1977). If the plaintiff fails to show that all elements of class certification are satisfied, class certification should be denied. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982).
Rule 23, Ascertainability of the Class The ascertainability of a class ensures that class members are reasonably identifiable. While the Third Circuit views the ascertainability requirement as an implied class certification requirement under Rule 23(a), see Marcus v. BW of N. Am., LLC, 687 F.3d 583, 594 (3rd Cir. 2012), the Seventh Circuit views the same issue in context of Rule 23(b)’s requirement that a class action be a superior method of adjudication and manageable. See Mullins v. Direct Digital, LLC, 795 F.3d 654, 660 (7th Cir. 2015).
2

Romero v. Securus Technologies, Inc., Not Reported in Fed. Supp. (2018) 2018 WL 1782926

The Ninth Circuit also appears to address issues of ascertainability in context of Rule 23(b). See Pierce v. County of Orange, 526 F.3d 1190, 1200 (9th Cir. 2008) (Rule 23(b) does not offer “a superior method for fair and efficient adjudication in light of expected difficulties identifying class members”).
*3 A class definition must be “precise, objective, and presently ascertainable.” O’Connor v. Boeing North Am., Inc., 197 F.R.D. 404, 416 (C.D. Cal. 2000) “An adequate class definition specifies ‘a distinct group of plaintiffs whose members [can] be identified with particularity.’ ” Campbell v. PricewaterhouseCoopers, LLP, 253 F.R.D. 586, 593 (E. D. Cal. 2008) (quoting Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978)). The class is defined as:
Every person who was a party to any portion of a conversation between a person who was in the physical custody of a law enforcement officer or other public officer in California, and that person’s attorney, on a telephone number designated or requested not to be recorded, any portion of which was eavesdropped on or recorded by means of an electronic device during the period from July 10, 2008 to the applicable opt-out date, inclusive (the “Class Period”).
The court concludes that Plaintiffs fail to present sufficient evidence to show that there is an administratively feasible manner to determine whether a class action is the superior method for prosecuting Plaintiffs’ claims. For the County of San Diego, Plaintiffs identify examples of 128 Private Attorney Calls involving 123 Class Members which should not have been recorded. Plaintiffs also submit a summary list of recorded telephone calls potentially identifying 116 telephone calls between attorneys, or public defender entities, and detainees. (Motion at p.9:16-19). Other evidence submitted by Plaintiffs appear to show that 22 telephone calls were recorded. (ECF 62-20).
Plaintiffs have actively engaged in class and merits discovery, but fail to set forth a cogent method for determining who is a Class Member. The evidence
Footnotes

submitted by Plaintiffs shows that there may be about 22 to 123 Class Members in San Diego County. (Reply at p.3:7-10). However, it is unknown how many Class Members exist state-wide. Plaintiffs represent that Securus operates in 20 California counties, thus suggesting that there are hundreds, if not potentially thousands of additional Class Members. Thus, it is unclear whether the class consists of perhaps 22 class members, at the low end, or potentially thousands, at the upper limit.2 Without an ascertainable class, this action cannot proceed as a class action.
While ascertainability, like numerosity, does not require a precise number of class members; a proposed class of somewhere between 22 putative class members and a 1,000 raises serious administrative and management burdens that may undermine the effectiveness of the litigation. For example, a class of 22 may be insufficient under the circumstance to achieve the perceived efficiencies of a class action. Conversely, in light of the typicality and commonality of the class claims, a putative class of 1,000 would likely achieve substantial administrative and management efficiencies. The court notes that the issue of ascertainability is not insurmountable and may be further flushed out with additional discovery. Ian Jones, the Director of Support Services for Securus, declares that call logs identify “the parties to the call, when and where the call took place, the time of initiating the call, and the duration of the call,” and that such call logs are maintained indefinitely. (ECF 38-1; Jones Decl. ¶ 2). At the present time, Plaintiffs are unable to determine the contours of the class because the call logs have yet to be produced in discovery. Plaintiffs may renew their motion for class certification upon receipt of additional discovery.
*4 In sum, the court denies the motion for class certification without prejudice because Plaintiffs fail to sufficiently identify an ascertainable and manageable class. The court notes that the parties continue to pursue discovery. In the event Plaintiffs’ additional discovery efforts prove fruitful, they may renew their motion for class certification within 90 days of entry of this order.3
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 1782926

3

Romero v. Securus Technologies, Inc., Not Reported in Fed. Supp. (2018) 2018 WL 1782926

1

Securus argues that liability under the California Invasion of Privacy Act (“CIPA”), Cal. Penal Code § 636, does not attach to

accidental or inadvertent recordings of telephonic conversations. This argument, however, is not properly raised on a motion for

class certification.

2

It is also unclear whether the Class, as presently defined, encompasses non-resident California attorneys who represented

detainees in California.

3

In the event Plaintiffs have yet to discover the call logs, or require additional time to prepare a renewed motion for class

certification, Plaintiffs may bring an appropriate motion for additional time to file the contemplated renewed motion.

4

 
 Case 3:16-cv-01283-JM-MDD Document 184 Filed 11/19/20 PageID.5656 Page 1 of 19

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UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 JUAN ROMERO, FRANK TISCARENO, Case No.: 16cv1283 JM (MDD)

12

and KENNETH ELLIOTT on behalf of themselves and all others similarly

13 situated,

ORDER ON MOTION FOR FINAL

14

Plaintiffs, APPROVAL OF CLASS ACTION SETTLEMENT AND ORDER ON

15 v.

MOTION FOR COSTS, INCENTIVE

16 SECURUS TECHNOLOGIES, INC.,

AWARDS, AND ATTORNEYS’ FEES

17

Defendant.

18

19

Plaintiffs Juan Romero, Kenneth Elliott, and Frank Tiscareno (“Plaintiffs”), on

20 behalf of themselves and the class they represent, move for final approval of a class action

21 settlement reached with Defendant Securus Technologies, Inc. (“Securus”). (Doc. No.

22 179.) Plaintiffs also move for litigation costs, incentive awards, and attorneys’ fees. (Doc.

23 No. 181.) Neither motion is opposed. A final approval hearing on the motions was held

24 on November 9, 2020, with counsel for Plaintiffs and Securus appearing telephonically.

25 No class members appeared. For the reasons set forth below, the Motion for Final

26 Approval of Class Action Settlement is GRANTED. The Motion for Costs, Incentive

27 Awards, and Attorneys’ Fees is GRANTED IN PART and DENIED IN PART.

28

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1

I. BACKGROUND

2

On May 27, 2016, Plaintiffs filed a putative class action lawsuit alleging that Securus

3 unlawfully recorded calls between detainees and attorneys. Securus provides inmate

4 communication services for correctional facilities throughout California. Plaintiffs are two

5 former inmates and a criminal defense attorney who used Securus’ telephone services to

6 make calls to and from correctional facilities and whose calls were recorded. After the

7 court partially granted two successive motions to dismiss, Plaintiffs filed the operative

8 Third Amended Complaint, which alleges claims for violation of the California Invasion

9 of Privacy Act (CIPA) and violation of the California Business and Professions Code

10 § 17200 et seq., as well as for concealment, fraud, negligence, and unjust enrichment.

11 (Doc. No. 30.)

12

On October 10, 2017, Plaintiffs moved for class certification. (Doc. No. 62.) On

13 April 12, 2018, the court denied Plaintiffs’ motion for class certification without prejudice

14 because Plaintiffs “fail[ed] to present sufficient evidence . . . . that there is an

15 administratively feasible manner to determine whether a class action is the superior method

16 for prosecuting Plaintiffs’ claims.” (Doc. No. 93 at 5.) The court found the class could be

17 as small as 22 members or as large as thousands, and numbers at the low end might not

18 produce efficiencies from class litigation. (Id. at 5-6.) The court allowed Plaintiffs to

19 renew their motion within 90 days notwithstanding expiration of the deadline for discovery

20 on class certification issues. (Id. at 6.)

21

On May 22, 2018, Plaintiffs moved for summary judgment on the issue of whether

22 their CIPA claim required proof of intent. (Doc. No. 101.) On July 11, 2018, Plaintiffs

23 also filed a renewed motion for class certification. (Doc. No. 122-1.) On November 21,

24 2018, the court issued an order resolving both motions. (Doc. No. 141.) The court denied

25 Plaintiffs’ motion for partial summary judgment because it found that CIPA is not a strict

26 liability statute, and because Plaintiffs failed to establish that there is no genuine dispute of

27 material fact as to whether Securus had the necessary intent. (Id. at 19.) However, the

28 court partially granted Plaintiffs’ renewed motion for class certification. (Id. at 33-34.)

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1 The court certified a class for Plaintiffs’ CIPA claim, but denied class certification for each

2 of Plaintiffs’ other claims. Id. Thereafter, the parties participated in two day-long

3 mediation sessions with The Honorable Leo S. Papas (retired), first on October 3, 2018 and

4 again on August 16, 2019.

5

On December 3, 2018, Plaintiffs filed an interlocutory request with the Ninth Circuit

6 to appeal the denial of their motion for partial summary judgment, which was denied. (Doc.

7 Nos. 143, 149.) Additionally, Plaintiffs and Securus petitioned the Ninth Circuit for review

8 of the district court’s class certification order. (Doc. Nos. 144, 145.) Plaintiffs sought

9 review of the district court’s denial of class certification as to all claims except their CIPA

10 claim, arguing that they were based on the same central question and common proof. (Doc.

11 No. 144.) Securus sought review of three questions: (1) whether the court could certify

12 class claims without any evidence that Securus had a common, class-wide intention about

13 recording telephone calls; (2) whether class litigation was superior to other forms of

14 litigation in this case; and (3) whether the court had the authority to grant Plaintiffs’ motion

15 for class certification after having denied Plaintiffs’ first motion for class certification.

16 (Doc. No. 145.) Securus also argued that the district court erred because it misapplied the

17 law governing allegations of improperly recorded calls after 2014. Id. On February 27,

18 2019, the Ninth Circuit denied Plaintiffs’ petition to hear the case, but granted Securus’

19 petition. (Doc. Nos. 155-56.) The action was stayed in the district court pending Securus’

20 appeal. (Doc. No. 168.)

21

Following the Ninth Circuit’s grant of review of Securus’ petition, the Ninth Circuit

22 appointed a mediator. After multiple status conferences with the mediator, a settlement

23 agreement was reached. On March 12, 2020, the Ninth Circuit dismissed the appeal

24 without prejudice pending approval of the settlement by the district court. On May 18,

25 2020, Plaintiffs filed a motion for preliminary approval of the class action settlement, (Doc.

26 No. 175), which the court granted, (Doc. No. 178). In its June 16, 2020 order preliminarily

27 approving the parties’ settlement agreement, the court approved the following class

28 definition:

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1

Every person who was a party to any portion of a conversation between a

2

person who was in the physical custody of a law enforcement officer or other public officer in California, and that person’s attorney, on a telephone number

3

designated or requested not to be recorded, any portion of which was

4

eavesdropped on or recorded by Defendant Securus Technologies, Inc. by means of an electronic device during the period July 10, 2008 through June

5

16, 2020.

6 (Doc. No. 178 at 16.)1

7

II. SETTLEMENT AGREEMENT TERMS

8

In the settlement agreement, Plaintiffs waive their individual claims and their claims

9 for monetary damages. (Doc. No. 179-3 at 7 ¶ III.A.) In exchange, Securus agrees that

10 within six months after final approval it will: (1) make available to its customers a no-cost

11 “private call” option for approved numbers; (2) implement message prompts advising

12 callers whether the call will be recorded; and (3) post on its website information about

13 designating numbers as approved. (Id. at 7-8 ¶¶ III.E.1-3.) Additionally, within 12 months

14 of final approval, Securus will provide Plaintiffs’ counsel with bi-annual declarations

15 describing Securus’ compliance. (Id. ¶ III.E.4.) Finally, Securus agrees to pay each

16 Plaintiff a service award of up to $20,000, as well as attorneys’ fees and costs up to

17 $840,000, both subject to court approval. (Id. ¶¶ III.F-G.) Securus also agrees not to

18 oppose Plaintiffs’ motion for costs, service awards, and attorneys’ fees. (Id.) The

19 settlement agreement provides no monetary relief for class members, but class members

20 do not waive their right to seek monetary damages.

21

III. DISCUSSION

22

A. Rule 23(a) Requirements

23

Before approving a class action settlement, the court’s “threshold task is to ascertain

24 whether the proposed settlement class satisfies the requirements of Rule 23(a) of the

25 Federal Rules of Civil Procedure applicable to class actions, namely: (1) numerosity,

26

27

28 1 This class definition is consistent with the class as defined in the settlement agreement.

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1 (2) commonality, (3) typicality, and (4) adequacy of representation.” Hanlon v. Chrysler

2 Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). In the settlement context, the court “must pay

3 undiluted, even heightened, attention to class certification requirements.” Id. In addition,

4 the court must determine whether class counsel is adequate under Rule 23(g). In re Mego

5 Fin. Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir. 2000).

6

1. Numerosity

7

The numerosity requirement is satisfied if the class is “so numerous that joinder of

8 all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “A class greater than forty

9 members often satisfies this requirement[.]” Walker v. Hewlett-Packard Co., 295 F.R.D.

10 472, 482 (S.D. Cal. 2013) (citation omitted). Additionally, in cases involving injunctive

11 relief only, the numerosity requirement may be relaxed. See Reynoso v. RBC Bearings,

12 Inc., Case No. SACV 16-01037 JVS (JCGx), 2017 WL 6888305, at *5 (C.D. Cal. Oct. 5,

13 2017), decertified on other grounds by Reynoso v. All Power Mfg. Co., No. SACV 16-

14 01037 JVS (JCGx), 2018 WL 5906645, at *6 (C.D. Cal. Apr. 30, 2018). Here, the court

15 previously found that joinder of the 246 potential class members identified by Plaintiffs

16 would be impracticable. (Doc. No. 141 at 30-31.) Now, the class list provided by Securus

17 to the notice administrator included 142,314 individuals. (Doc. No. 179-1 at 23.)

18 Accordingly, the numerosity requirement is satisfied.

19

2. Commonality

20

The commonality requirement is satisfied if “there are questions of law or fact

21 common to the class.” Fed. R. Civ. P. 23(a)(2). “To satisfy this commonality requirement,

22 plaintiffs need only point to a single issue common to the class.” Vasquez v. Coast Valley

23 Roofing, Inc., 670 F. Supp. 114, 1121 (E.D. Cal. 2009). Here, as the court previously

24 found, there are two class-wide questions that could be answered by common proof:

25 (1) “[w]hether Securus recorded calls between detainees and attorneys without their

26 permission,” and (2) “[h]ow and why Securus recorded detainee-attorney calls.” (Id. at

27 24.) These issues would not change if the case were to proceed to trial. (See Doc. No.

28 179-1 at 23.) Accordingly, the commonality requirement is satisfied.

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1

3. Typicality

2

The typicality requirement is satisfied if “the claims or defenses of the representative

3 parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The

4 test of typicality is whether other members have the same or similar injury, whether the

5 action is based on conduct which is not unique to the named plaintiffs, and whether other

6 class members have been injured by the same course of conduct.” Hanon v. Dataproducts

7 Corp., 976 F.2d 497, 508 (9th Cir. 1992) (internal quotation and citation omitted). Here,

8 as the court previously found, “[l]ike all class members, Plaintiffs’ confidential calls were

9 recorded by Securus without their permission,” (Doc. No. 141 at 31), which is the basis for

10 Plaintiffs’ and class members’ claims. Thus, Plaintiffs’ claims are typical of those of the

11 class.

12

4. Adequacy

13

The final Rule 23(a) requirement is that “the representative parties will fairly and

14 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). This requires the

15 court to address two questions: “(a) do the named plaintiffs and their counsel have any

16 conflicts of interest with other class members and (b) will the named plaintiffs and their

17 counsel prosecute the action vigorously on behalf of the class.” Mego, 213 F.3d at 462. A

18 court certifying a class must consider: “(i) the work counsel has done in identifying or

19 investigating potential claims in the action; (ii) counsel’s experience in handling class

20 actions; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel

21 will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A). The court may also

22 consider “any other matter pertinent to counsel’s ability to fairly and adequately represent

23 the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B).

24

Here, there is no indication of a conflict of interest between Plaintiffs or their

25 attorneys and absent class members. (See Doc. No. 179-1 at 16.) Although Plaintiffs seek

26 service awards, they waive their claims for monetary damages, whereas class members do

27 not. Plaintiffs declare they kept themselves informed about the status of proceedings,

28 participated in lengthy mediations, and suffered the same injury as the absent class

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1 members. (Id.) With respect to Plaintiffs’ counsel, the record is clear that settlement was

2 negotiated by counsel with extensive experience in consumer class action litigation, that

3 Plaintiffs’ counsel engaged in substantial motions practice, made extensive discovery

4 requests, and obtained sufficient information and documents to evaluate the strengths and

5 weaknesses of the case. (Id. at 16-17.) Accordingly, the adequacy requirement is satisfied.

6

B. Rule 23(b)(2) Requirements

7

“In addition to meeting the conditions imposed by Rule 23(a), the parties seeking

8 class certification must show that the action is maintainable under Fed. R. Civ. P 23(b)(1),

9 (2) or (3).” Hanlon, 150 F.3d at 1022. Rule 23(b)(2) provides that a class action may be

10 maintained if “the party opposing the class has acted or refused to act on grounds that apply

11 generally to the class, so that final injunctive relief or corresponding declaratory relief is

12 appropriate respecting the class as a whole[.]” Here, as the court previously determined, a

13 single injunction provides relief to each member of the class. (Doc. No. 141 at 30 (citing

14 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011)). “An injunction prohibiting

15 Securus from eavesdropping on, listening to, recording, disclosing, or using

16 communications between detainees and their attorneys without their permission would

17 prevent an issue similar to the one presented here from recurring.” (Id. at 29.) Although

18 there will be some variation as to whether Plaintiffs and class members will need to use

19 Securus’ services in the future, the injunctive relief is still “appropriate” and “generally”

20 applies to the class given that they may need to use Securus’ services in the future. Plus,

21 no objections have been filed. Accordingly, Plaintiffs have satisfied the requirements for

22 certification of a class under Rule 23(b)(2).

23

C. Rule 23(e)(2) Requirements

24

Rule 23(e)(2) provides that the court may approve a class action settlement “only

25 after a hearing and only on a finding that it is fair, reasonable, and adequate after

26 considering whether: (a) the class representatives and class counsel have adequately

27 represented the class; (b) the proposal was negotiated at arm’s length; (c) the relief provided

28 for the class is adequate; [and] (d) the proposal treats class members equitably relative to

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1 each other.” 2 In making this determination, the court is required to “evaluate the fairness

2 of a settlement as a whole, rather than assessing its individual components.” Lane v.

3 Facebook, Inc., 696 F.3d 811, 818-19 (9th Cir. 2012). Because a “settlement is the

4 offspring of compromise, the question [to be] address[ed] is not whether the final product

5 could be prettier, smarter or snazzier, but whether it is fair, adequate and free from

6 collusion.” Hanlon, 150 F.3d at 1027; see also United States v. Armour & Co., 402 U.S.

7 673, 681 (1971) (“Naturally, the agreement reached normally embodies a compromise; in

8 exchange for the saving of cost and elimination of risk, the parties each give up something

9 they might have won had they proceeded with litigation.”) The court’s primary concern

10 “is the protection of those class members, including the named [p]laintiffs, whose rights

11 may not have been given due regard by the negotiating parties.” Officers for Justice v.

12 Civil Serv. Comm’n of City & Cnty. of S.F., 688 F.2d 615, 624 (9th Cir. 1982) (citation

13 omitted). Furthermore, there is a strong judicial policy in favor of settlement. Churchill

14 Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 576 (9th Cir. 2004). “In most situations, unless

15 the settlement is clearly inadequate, its acceptance and approval are preferable to lengthy

16 and expensive litigation with uncertain results.” Nat’l Rural Telecomms. Coop. v.

17 DIRECTV, Inc., 221 F.R.D. 523, 526 (C.D. Cal. 2004).

18

1. Notice

19

Class members are entitled to receive the best notice practicable about the

20 settlement. Fed. R. Civ. P. 23(c)(2). “Adequate notice is critical to court approval of a

21 class settlement under Rule 23(e).” Hanlon, 150 F.3d at 1025. Notice should be

22 “reasonably calculated, under all the circumstances, to apprise interested parties of the

23 pendency of the action and afford them an opportunity to present their objections.”

24 Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950).

25

26

27

28 2 Adequacy of representation is discussed above.

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1

As supported by a declaration from the settlement administrator, on July 9, 2020, the

2 previously approved notice (see Doc. No. 178) was e-mailed to all 142,314 individuals

3 who used Securus’ phone system that were found in Securus’ database of customers with

4 an address in California, as well as those who were parties to a phone call to or from a

5 facility in California, (Doc. No. 179-40). The e-mail from the settlement administrator

6 provided those individuals with the notice and a link to a webpage maintained by the

7 settlement administrator setting forth the notice and the settlement agreement. The notice

8 included the date and time of the final approval hearing, how to object to the settlement

9 and information about important dates and deadlines associated with the settlement. Of

10 the 142,314 e-mails that were sent, 12,107 came back because of invalid e-mail addresses.

11 On July 9, 2020, the notice was mailed, via U.S. First Class Mail, to the 12,107 individuals

12 with invalid e-mails. In preparation for the mailing, all 12,107 individual names and

13 addresses were processed against a national change of address database maintained by the

14 U.S. Postal Service. No objections were filed by the August 21, 2020 deadline. Based on

15 the above, the notice provided to the class members appears adequate.

16

2. Arm’s Length Negotiations

17

In Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 966 (9th Cir. 2009), the Ninth Circuit

18 stated, “[w]e put a good deal of stock in the product of an arms-length, non-collusive,

19 negotiated resolution.” Plaintiffs argue that the proposed settlement is the product of

20 informed arms-length negotiations because: (1) it was preceded by four years of adversarial

21 litigation involving substantial discovery, including the exchange of multiple sets of

22 written discovery and hundreds of documents; (2) there was extensive motion practice,

23 including various discovery motions, a motion for partial summary judgment, two motions

24 for class certification, and three petitions for interlocutory review; (3) at the time of

25 settlement, Plaintiffs and their counsel had a full understanding of the strengths and

26 weaknesses of Plaintiffs’ claims and Securus’ defenses, and were able to assess whether

27 the change in business practices and injunctive relief would adequately benefit the class

28 when weighed against the risks of continuing litigation; (4) the settlement was reached

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1 after the parties participated in two in-person mediation sessions before an experienced

2 mediator, and several months of continued settlement negotiations supervised by the Ninth

3 Circuit Mediator; and (5) Plaintiffs’ counsel are experienced in class action matters. (Doc.

4 No. 179-1 at 17-18.) Additionally, Plaintiffs submit that the $900,000 in requested total

5 costs, incentive awards, and fees was negotiated separately and only after the parties had

6 reached agreement on the injunctive relief. (Doc. No. 181-1 at 13.) For these reasons, the

7 settlement appears to be the product of arm’s length negotiations. See Mauss v. NuVasive,

8 Inc., Case No.: 13cv2005 JM (JLB), 2018 WL 6421623, at *4 (S.D. Cal. Dec. 6, 2018)

9 (finding no collusion based on extensive litigation, counsel’s experience, and participation

10 in mediation).

11

3. Adequacy of Relief

12

In deciding whether the relief provided for the class is adequate, the court takes into

13 account: “(i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of any

14 proposed method of distributing relief to the class, including the method of processing

15 class-member claims; (iii) the terms of any proposed award of attorney’s fees, including

16 timing of payment; and (iv) any agreement required to be identified under Rule 23(e)(3).”

17 Fed. R. Civ. P. 23(e)(2)(C); see also Rodriguez, 563 F.3d at 966 (risk, expense, complexity

18 and duration of litigation supports the adequacy of relief).

19

Plaintiffs argue the costs, risks, and delays associated with a trial are significant

20 because: (1) Securus has vigorously and continuously denied any wrongdoing, and absent

21 settlement, Securus would continue to defend this action aggressively; (2) the Ninth Circuit

22 could reverse the court’s order granting class certification; (3) because Plaintiffs’ theory of

23 strict liability was rejected on summary judgment (and the Ninth Circuit denied Plaintiffs’

24 petition for interlocutory review of this issue), Plaintiffs would have to prove scienter at

25 trial, which would be difficult because Securus maintains that any call recordings resulted

26 from a software glitch; and (4) if Plaintiffs prevailed, an appeal would likely follow. (Doc.

27 No. 179-1 at 19-20.) Additionally, because the settlement agreement provides only

28 injunctive relief that applies generally equally, there is no need for a method of distribution.

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1 Also, the parties filed a detailed motion in support of the settlement agreement’s terms

2 regarding attorneys’ fees and costs, (see Doc. No. 181), which is discussed below. Finally,

3 to the extent that it needs to be disclosed under Rule 23(e)(3), Plaintiffs’ attorneys disclose

4 their agreement as to how an award of attorneys’ fees will be divided amongst them. (See

5 Doc. No. 179-1 at 21.) For these reasons, the relief appears adequate.3

6

4. Equitable Treatment

7

Plaintiffs argue the injunctive relief in the settlement will benefit each class member

8 relatively equally. Here, there will likely be some variation as to whether class members

9 enjoy the benefit of the injunctive relief because some class members will not need to use

10 Securus’ services again. But the injunctive relief benefits each class member relatively

11 equally should they need to use Securus’ services in the future. Additionally, no objections

12 to the settlement were filed. See DIRECTV, 221 F.R.D. at 528-29 (“It is established that

13 the absence of a large number of objections to a proposed class action settlement raises a

14 strong presumption that the terms of a proposed class settlement action are favorable to the

15 class members.”). Also, although the settlement agreement authorizes a service award for

16 the named Plaintiffs, “the Ninth Circuit has recognized that service awards to named

17 plaintiffs in a class action are permissible and do not render a settlement unfair or

18 unreasonable.” Harris v. Vector Mktg. Corp., No. C-08-5198 EMC, 2011 WL 1627973,

19 at *9 (N.D. Cal. Apr. 29, 2011) (citing Stanton v. Boeing Co., 327 F.3d 938, 977 (9th Cir.

20 2003)). Accordingly, the injunctive relief appears to benefit each class member relatively

21 equally.4

22

D. Attorneys’ Fees, Costs, and Service Awards

23

Plaintiffs seek approval of $813,541.04 in attorneys’ fees, $26,458.96 in litigation

24 costs, and up to $60,000 in incentive awards. (Doc. No. 181-1 at 6.) “While attorneys’

25

26 27 3 Adequacy of representation is discussed above.

28 4 The appropriateness of the amount of the service award is discussed below.

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1 fees and costs may be awarded in a certified class action where so authorized by law or the

2 parties’ agreement, Fed. R. Civ. P. 23(h), courts have an independent obligation to ensure

3 that the award, like the settlement itself, is reasonable, even if the parties have already

4 agreed to an amount.” In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935, 941 (9th

5 Cir. 2011) (“Bluetooth”) (citations omitted). Plaintiffs argue they are entitled to attorneys’

6 fees under California’s “private attorney general statute,” CAL. CODE. CIV. PROC. § 1021.5.

7 (Doc. No. 180-1 at 9-10.)

8

1. Lodestar Method

9

“The ‘lodestar method’ is appropriate in class actions brought under fee-shifting

10 statutes . . . . where the relief sought – and obtained – is often primarily injunctive in nature

11 and thus not easily monetized, but where the legislature has authorized the award of fees

12 to ensure compensation for counsel undertaking socially beneficial litigation.” Bluetooth,

13 654 F.3d at 941. As discussed further below, the California private attorney general statute

14 authorizes the award of fees for socially beneficial litigation. See CAL. CIV. PROC. CODE

15 § 1021.5. “Though the lodestar figure is ‘presumptively reasonable,’ the court may adjust

16 it upward or downward by an appropriate positive or negative multiplier reflecting a host

17 of ‘reasonableness’ factors, ‘including the quality of representation, the benefit obtained

18 for the class, the complexity and novelty of the issues presented, and the risk of

19 nonpayment.’ Foremost among these considerations, however, is the benefit obtained for

20 the class.” Bluetooth, 654 F.3d at 941-42 (citations omitted).

21

Plaintiffs argue the total lodestar figure is $1,820,341 based on 2,866.665 hours of

22 work, (Doc. No. 180-1 at 23-24), which averages out to $635 per hour. More specifically,

23 nine lawyers and four paralegals at the Law Office of Ronald A. Marron (“the Marron

24 Firm”) claim $336,249 based on 589.3 hours of work (468.7 attorney hours and 120.6

25

26
27 5 In their motion, Plaintiffs state that the total lodestar figure is “based on 974,804.95 hours of work,” (see Doc. No. 181-1 at 24:3), which equals 111 years. Based on the information
28 contained in supporting declarations, the correct total number of hours worked is 2,866.66.

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1 paralegal and law clerk hours). (Doc. No. 181-2 ¶ 20.) Eight lawyers and three paralegals

2 at Foley & Lardner claim $490,064.50 based on 884.7 hours of work (809.3 attorney hours

3 and 75.4 paralegal and law clerk hours). (Doc. No. 181-6 ¶ 10.) Finally, Mr. Teel of the

4 Law Office of Robert L. Teel claims $974,804.95 for 1,392.6 hours of work at $700 per

5 hour. (Doc. No. 181-7 ¶ 13.) In the settlement agreement, however, the parties agreed to

6 $813,541.04 in attorneys’ fees, which, as Plaintiffs point out, represents a 55.3% decrease

7 from the $1,820,341 loadstar figure. 6 (See Doc. No. 181-1 at 6, 23.) Plaintiffs’ attorneys

8 disclose that they agreed that $400,000 of the attorneys’ fees award shall be allocated to

9 Foley & Lardner, and the remainder will be split by the Marron Firm and the Law Office

10 of Robert L. Teel. (Id. at 30.)

11

Based on the evidence available in the record, the quality of the representation

12 appears adequate, if not more than adequate. Plaintiffs’ attorneys were at least partially

13 successful in avoiding or defending against motions to dismiss. (See Doc. No. 179-1 at 6-

14 7.) They also engaged in substantial discovery and brought multiple motions in support of

15 their discovery requests. (Id. at 7.) Plaintiffs’ attorneys also successfully obtained

16 certification of a class, and appealed the denial of their motion for partial summary

17 judgment. (Id. at 8.) Finally, Plaintiffs’ attorneys participated in multiple lengthy

18 settlement discussions that were ultimately successful. (Id. at 9-10.)

19

The benefit obtained by the class might weigh more in favor of a downward

20 adjustment, rather than an upward one, given that class members will receive no monetary

21 relief, and will not directly benefit from the injunctive relief unless they need to use

22

23 6 With respect to rates, Plaintiffs list hourly rates between $625 and $839 for seven partners,
24 between $550 and $615 for three senior associates, $539 for one senior counsel, between
25 $315 and $490 for six associates, and between $225 and $290 for four paralegals. (Doc. No. 181-1 at 25-26.) Plaintiffs support the reasonableness of their rates by attaching rate
26 reports and surveys, as well as listing numerous cases in which similar rates were approved.
27 To the extent that Plaintiffs’ attorneys’ rates are inflated, they are not likely inflated beyond 55.3%. Based on the reduced $813,541.04 figure, the average rate charged for 2,866.66
28 hours worked was $238.79, which is reasonable.

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1 Securus’ services for confidential calls in the future. However, a 55.3% downward

2 adjustment has already been applied, and class members are not prohibited from seeking

3 monetary damages. Additionally, the complexity and novelty of the issues presented weigh

4 in favor of reasonableness. As described by Plaintiffs, “[t]his case . . . . takes place at the

5 intersection where constitutional and civil rights meet law enforcement,” which is not the

6 typical consumer class action. (Id. at 7.) The risk of nonpayment accepted by Plaintiffs’

7 attorneys also weighs in favor of reasonability because, as repeatedly pointed out by

8 Plaintiffs, the Ninth Circuit might decertify their class, and they face a significant hurdle

9 at trial of proving scienter. (See Doc. No. 181-1 at 23.) Overall, the lodestar method

10 supports the reasonableness of the parties’ agreement for $813,541.04 in attorney’s fees.

11

2. California Private Attorney General Statute

12

As noted above, Plaintiffs argue they are entitled to attorneys’ fees under

13 California’s private attorney general statute, CAL. CODE. CIV. PROC. § 1021.5. The statute

14 provides that “[u]pon motion, a court may award attorneys’ fees to a successful party

15 against one or more opposing parties in any action which has resulted in the enforcement

16 of an important right affecting the public interest.” Id. Accordingly, courts may award

17 attorneys’ fees in such cases if:

18

(a) a significant benefit, whether pecuniary or nonpecuniary, has been

19

conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement are such as to make the award

20

appropriate, and (c) such fees should not in the interest of justice be paid out

21

of the recovery, if any.

22 Indep. Living Ctr. of S. California, Inc. v. Kent, 909 F.3d 272, 283 (9th Cir. 2018) (citing

23 Maria P. v. Riles, 43 Cal.3d 1281 (1987)).

24

i. Successful Party

25

“In determining whether a plaintiff is a successful party for purposes of § 1021.5,

26 ‘the critical fact is the impact of the action, not the manner of its resolution.’” Kent, 909

27 F.3d 283 (citation omitted). To show success, the plaintiff must establish “(1) the lawsuit

28 was a catalyst motivating the defendants to provide the primary relief sought; (2) that the

14 16cv1283 JM (MDD)

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1 lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint of

2 nuisance and threat of expense . . . . and, (3) that the plaintiffs reasonably attempted to

3 settle the litigation prior to filing the lawsuit.” Thomas, 2019 WL 2590170, at *2 (citing

4 Tipton-Whittingham v. City of L.A., 34 Cal. 4th 604, 608 (2004)).

5

Here, Plaintiffs’ lawsuit was likely a substantial factor in Securus’ decision to make

6 the specific changes to its procedures contained in the settlement agreement. See

7 Henderson, 2013 WL 3146774, at *4 (“To be a catalyst, the lawsuit must have been ‘a

8 substantial causal factor’ contributing to [d]efendant’s conduct, though the lawsuit need

9 not be the only cause of [d]efendant’s conduct.”) (citation omitted). Although Securus

10 might have recognized and fixed the glitch that was allegedly responsible for the calls being

11 recorded, nothing in the record suggests that Securus would have made the changes to its

12 procedures regardless of the lawsuit, and the changes appear to entail much more than just

13 fixing a technological glitch. Even if the procedural changes Securus agreed to make were

14 only a minor inconvenience, nothing in the record suggests the case was settled for

15 nuisance value or based on threat of expense. To the contrary, the case was litigated

16 fervently by both sides for years. Finally, there is nothing in the record to suggest that

17 Plaintiffs did not reasonably attempt to settle the litigation prior to filing their lawsuit. See

18 Thomas, 2019 WL 2590170, at *7 (noting that the bar for this element is “not high”).

19

ii. Other Factors

20

Plaintiffs argue the injunctive relief provided in the settlement benefits both class

21 members and the general public because it eliminates virtually all risk of an inadvertent

22 recording of attorney-detainee phone calls, which protects the public’s interest in

23 safeguarding constitutional rights. (See Doc. No. 181-1 at 11.) Plaintiffs further argue that

24 private enforcement and the resulting financial burden were necessary to obtain the relief

25 given that Securus denied all liability. (Id.) The significant cut Plaintiffs’ attorneys made

26 to their lodestar also supports the appropriateness of the agreed upon fees.

27

Overall, the harms alleged by Plaintiffs were less likely to be resolved by means

28 other than through private enforcement incentivized by the potential for an award of

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1 attorneys’ fees. The record shows no indication that a public entity or official pursued

2 enforcement or litigation. The harm alleged here is also not strictly monetary, as it involves

3 an alleged violation of constitutional rights. Accordingly, it appears to be in the interest of

4 justice that attorneys’ fees be awarded as consistent with California’s private attorney

5 general statute, CAL. CODE. CIV. PROC. § 1021.5.

6

3. Costs

7

Counsel for the class may also move for costs if they are a prevailing party. See Fed.

8 R. Civ. P. 54(d)(1); CAL. CIV. PROC. CODE §§ 1032, 1033.5. Plaintiffs request $26,458.96

9 in litigation costs, which includes $3,229.27 in costs for the Marron Firm, $4,007.45 in

10 costs for the Law Office of Robert L. Teel, and $19,222.25 in costs for Foley & Lardner.

11 (See Doc. No. 181-2 ¶ 19.) The only support Plaintiffs provide for the reasonableness of

12 their costs are declarations stating that “[a]ll of Counsel’s expenses were reasonable and

13 necessary for the successful prosecution of this case.” (Doc. No. 181.1 at 14.) The Marron

14 Firm’s biggest expenses were process server fees ($1,305.30) and printer fees ($1,009.75).

15 Mr. Teel’s biggest expense was for travel ($2,358.13), and Foley & Lardner’s biggest

16 expenses were for mediation fees ($9,300), “Litigation Services – Hosting” ($5,400),7 and

17 electronic legal research ($1,960.70). These expenses, plus expenses for filing fees,

18 shipping costs, and postage contained in counsels’ detailed bills, are reasonably

19 recoverable.

20

4. Incentive Awards

21

In class actions, incentive awards are fairly typical, discretionary, and “are intended

22 to compensate class representatives for work done on behalf of the class, to make up for

23 financial or reputational risk undertaken in bringing the action, and, sometimes, to

24

25

26
27 7 During the hearing, counsel explained that “Litigation Services – Hosting” referred to the cost of in-house storage of voluminous electronic discovery material, which counsel stated
28 was relatively less expensive than other means of storing electronic material.

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1 recognize their willingness to act as a private attorney general.” Rodriguez, 563 F.3d at

2 958-59. In deciding whether to approve incentive awards, courts consider:

3

1) the risk to the class representative in commencing suit, both financial and

4

otherwise; 2) the notoriety and personal difficulties encountered by the class representative; 3) the amount of time and effort spent by the class

5

representative; 4) the duration of the litigation and; 5) the personal benefit (or

6

lack thereof) enjoyed by the class representative as a result of the litigation.

7 See, e.g., Moreno v. Beacon Roofing Supply, Inc., No. Case No.: 19cv185-GPC (LL), 2020

8 WL 3960481, at *5-6 (S.D. Cal. July 13, 2020) (quoting Van Vranken v. Atl. Richfield Co.,

9 901 F. Supp. 294, 299 (N.D. Cal. 1995)).

10

Plaintiffs argue they are each entitled to a service award because: (1) each Plaintiff

11 devoted between 24 to 42.5 hours to this case; (2) Plaintiff Tiscareno lost business after

12 customers learned about his involvement with this action because it was easily discoverable

13 through an internet search; (3) Plaintiff Elliott, a criminal defense attorney, spent time

14 reviewing case files and travelling to detention facilities to meet in person with his clients

15 rather than using Securus’ services, which he could not bill for because he mostly charges

16 a flat fee; (4) Plaintiff Romero’s probation officer allegedly became angry when she found

17 out about his involvement as lead class representative, asked his neighbors if he engaged

18 in illegal activity, and was subsequently removed from his case; (5) Plaintiffs had a right

19 to statutory damages of $5,000 per phone call under CIPA; and (6) Plaintiffs are the only

20 members of the class that executed a release for monetary damages. (Doc. No. 181-1 at

21 17-20.)

22

At the outset, it should be noted that the settlement agreement provides that Securus

23 will pay up to $20,000 to each Plaintiff as a service award. (Doc. No. 179-3 at 9.) In their

24 motion for final approval, however, Plaintiffs state, “in light of the Court’s concerns

25 discussed at the preliminary approval hearing regarding the amount of the award, Plaintiffs

26 each respectfully request a service award of $10,000 for their time and efforts in

27 prosecuting the case.” (Doc. No. 179-1 at 13.) Nonetheless, in their subsequently-filed

28 motion for attorneys’ fees, Plaintiffs again request $20,000 each. (Doc. No. 181-1 at 14.)

17 16cv1283 JM (MDD)

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1 Plaintiffs also acknowledge that the time each Plaintiff devoted to this case does not, per

2 se, warrant a $20,000 incentive award. (See Doc. No. 181-1 at 21 (“Here, the amount of

3 time Plaintiffs spent on the case might not equate to a $20,000 incentive award.”).)

4

Here, Plaintiffs are entitled to $10,000 each because they waived their right to seek

5 monetary and statutory damages whereas class members have not, and because they acted

6 as private attorneys general in protecting the public’s interest in constitutional rights.

7 Plaintiffs declare, and the court has no reason to disbelieve, that Plaintiffs would not have

8 agreed to the settlement if the rest of the class members had been required to release their

9 claims, and that Plaintiffs felt obligated to protect the constitutional rights of detainees.

10 Additionally, Securus consented to paying Plaintiffs service awards up to $20,000 each

11 within 30 days of final approval, and Securus agreed not to oppose Plaintiffs’ petition for

12 service awards. (See Doc No. 179-3 at 9 ¶ III.G.) Plaintiff Tiscareno also provides some

13 evidence showing that because of his involvement in this case, his status as a former inmate

14 is more easily discoverable via the internet, and the same would be true for Plaintiff

15 Romero. With respect to Plaintiff Elliott, it is reasonable that he would incur some

16 additional expense considering his involvement in this case, and as a result of his inside

17 knowledge of this case.

18

V. CONCLUSION

19

For the foregoing reasons, Plaintiffs’ Motion for Approval of Class Action Settlement

20 (Doc. No. 179) is GRANTED. Additionally, Plaintiffs’ motion for $840,000 in attorneys’

21 fees and costs (Doc. No. 181) is GRANTED. Plaintiffs’ motion for $60,000 in incentive

22 awards, however, is DENIED IN PART. Instead, each of the three Plaintiffs is awarded

23 $10,000 for a total of $30,000. In their motion, Plaintiffs state “[t]o the extent the Court

24 determines that the incentive award should be reduced, Class Representatives respectfully

25 request that the remaining amount within the total settlement amount be applied to the costs

26 incurred in the litigation for the benefit of all Class Members.” (Doc. No. 181-1 at 7.) This

27 request is DENIED. However, Plaintiffs are awarded an additional $30,000 in attorneys’

28 fees for a total award of $870,000 in attorneys’ fees and costs.

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1

Additionally, pursuant to the Plaintiffs’ request, (see Doc. No. 181-1 at 29), and to the

2 extent the court is empowered to do so, the settlement administrator, ILYM Group, Inc., is

3 authorized and ordered to establish, govern, and administer a qualified settlement fund under

4 Internal Revenue Code § 468B for purposes of paying attorneys’ fees to any attorney, but only

5 such attorney who requests his/her share of any attorneys’ fees awarded in this case be paid to

6 and received by a qualified settlement fund. Additionally, the regulations accompanying

7 Section 468B of Title 26 of the United States Code, as amended, shall be used in interpreting

8 the fund in a manner to accomplish the intent of the parties that the fund be characterized as a

9 qualified settlement fund under those regulations.

10

The court retains jurisdiction over this action for purposes of enforcing the parties’

11 settlement agreement, but not for the purpose of hearing related individual claims by class

12 members against Securus for monetary damages, violation of the CIPA, or otherwise. The

13 parties need not present a final approval to the court order as set forth in paragraph VI.B.3 of

14 the settlement agreement. The case is DISMISSED WITH PREJUDICE and judgment is

15 hereby entered on the terms set forth above. The Clerk of the Court is directed to close the

16 case.

17

IT IS SO ORDERED.

18 DATED: November 19, 2020 19 20

JEFFREY T. MILLER United States District Judge

21

22

23

24

25

26

27

28

19 16cv1283 JM (MDD)

 
 U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:16-cv-01283-JM-MDD

Romero et al v. Securus Technologies, Inc. Assigned to: Judge Jeffrey T. Miller Referred to: Magistrate Judge Mitchell D. Dembin Case in other court: USCA, 18-80180
USCA, 18-80181
USCA, 19-55243 Cause: 47:0227(b)(3) Telephone Consumer Protection Act of 1991

Date Filed: 05/27/2016 Date Terminated: 11/19/2020 Jury Demand: Plaintiff Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question

Plaintiff
Juan Romero on behalf of himself, and all others similarly situated

represented by Geoffrey M. Raux Foley & Lardner LLP 111 Huntingon Avenue Suite 2500 Boston, MA 02199 617-342-4000 Fax: 617-342-4001 Email: graux@foley.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Kas L. Gallucci Law Offices of Ronald A. Marron 651 Arroyo Drive San Diego, CA 92103 (619) 696-9006 Fax: (619) 564-6665 Email: kas@consumersadvocates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Houchin Law Offices of Ronald A. Marron 651 Arroyo Drive San Diego, CA 92103 619-696-9006 Email: mike@consumersadvocates.com

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert L. Teel Law Office of Robert L. Teel 1425 Broadway Mail Code: 20-6690 Seattle, WA 98122 866-833-5529 Fax: 855-609-6911 Email: lawoffice@rlteel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald Marron Law Office of Ronald Marron 651 Arroyo Drive San Diego, CA 92103 (619)696-9006 Fax: (619)564-6665 Email: ron@consumersadvocates.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Bradford Richards , Jr. Law Offices of Ronald A. Marron, APLC 651 Arroyo Drive San Diego, CA 92103 619-696-9006 Fax: 619-564-6665 Email: bill@consumersadvocates.com TERMINATED: 07/05/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Belsey Law Offices of Ronald A. Marron 651 Arroyo Drive San Diego, CA 92103 619-696-9006 Fax: 619-564-6665 Email: adam@consumersadvocates.com

Plaintiff
Frank Tiscareno on behalf of himself, and all others similarly situated

ATTORNEY TO BE NOTICED
Beatrice Skye Resendes The Watkins Firm, APC 9915 Mira Mesa Boulevard Suite 130 San Diego, CA 92131 858-535-1511 Fax: 858-535-1581 Email: sresendes@watkinsfirm.com TERMINATED: 12/29/2016
Eileen Regina Ridley Foley and Lardner LLP 555 California Street Suite 1700 San Francisco, CA 94104-1520 (415) 434-4484 Fax: (415) 434-4507 Email: eridley@foley.com ATTORNEY TO BE NOTICED
J. Mark Waxman Foley & Lardner LLP 3579 Valley Centre Drive Suite 300 San Diego, CA 92130 858-847-6700 Fax: 858-792-6773 Email: mwaxman@foley.com TERMINATED: 01/29/2020 ATTORNEY TO BE NOTICED
Nicholas John Fox 8405 Rio San Diego Drive Unit 5112 San Diego, CA 92108 920-602-1917 Email: nicholas.john.fox@gmail.com TERMINATED: 08/05/2020 ATTORNEY TO BE NOTICED
represented by Geoffrey M. Raux (See above for address) LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
Kas L. Gallucci (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Houchin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert L. Teel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald Marron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Bradford Richards , Jr. (See above for address) TERMINATED: 07/05/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Belsey (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED
Beatrice Skye Resendes (See above for address) TERMINATED: 12/29/2016
Eileen Regina Ridley (See above for address) ATTORNEY TO BE NOTICED
J. Mark Waxman (See above for address) TERMINATED: 01/29/2020 ATTORNEY TO BE NOTICED

Plaintiff Kenneth Elliott

Nicholas John Fox (See above for address) TERMINATED: 08/05/2020 ATTORNEY TO BE NOTICED
represented by Geoffrey M. Raux (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Kas L. Gallucci (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Houchin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert L. Teel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald Marron (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Bradford Richards , Jr. (See above for address) TERMINATED: 07/05/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Belsey (See above for address) TERMINATED: 08/29/2017 ATTORNEY TO BE NOTICED
Beatrice Skye Resendes (See above for address)

V. Defendant Securus Technologies, Inc.
Movant Pedro Rodriguez TERMINATED: 10/31/2017

TERMINATED: 12/29/2016
Eileen Regina Ridley (See above for address) ATTORNEY TO BE NOTICED
J. Mark Waxman (See above for address) TERMINATED: 01/29/2020 ATTORNEY TO BE NOTICED
Nicholas John Fox (See above for address) TERMINATED: 08/05/2020 ATTORNEY TO BE NOTICED
represented by Adam R Fox Squire Patton Boggs (US) LLP 555 South Flower Street 31st Floor Los Angeles, CA 90071-2300 213-689-5166 Fax: 213-623-4581 Email: Adam.Fox@squirepb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Pedro Rodriguez 1002378 Maguire Correctional Facility 300 Bradford St Redwoodcity, CA 94063 PRO SE

Date Filed 05/27/2016

# Docket Text
1 COMPLAINT with Jury Demand against Securus Technologies, Inc. ( Filing fee $ 400 receipt number 0974-9103532.), filed by Juan Romero, Frank Tiscareno. (Attachments: # 1 Civil Cover Sheet)

05/27/2016 07/05/2016 07/05/2016 07/05/2016
07/11/2016
07/14/2016 07/26/2016 08/04/2016 08/08/2016

The new case number is 3:16-cv-1283-JM-MDD. Judge Jeffrey T. Miller and Magistrate Judge Mitchell D. Dembin are assigned to the case. (Marron, Ronald)(fth) (Attachment 1 replaced on 5/27/2016) (fth). (jao). (Entered: 05/27/2016)
2 Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (fth)(jao). (Entered: 05/27/2016)
3 NOTICE of Party With Financial Interest by Securus Technologies, Inc. (Fox, Adam)(rlu). (Entered: 07/05/2016)
4 MOTION to Dismiss by Securus Technologies, Inc.. (Attachments: # 1 Declaration of Ian Jones in Supprot of Securus's Motion to Dismiss)(Fox, Adam)Attorney Adam R Fox added to party Securus Technologies, Inc.(pty:dft) (rlu). (Entered: 07/05/2016)
5 MOTION to Strike 4 MOTION to Dismiss by Securus Technologies, Inc.. (Attachments: # 1 Appendix of Electronic Authorities Cited in Support of Securus's Motion to Dismiss and Motion to Strike with Exhibits 1-10, # 2 Appendix of Electronic Authorities Cited in Support of Securus's Motion to Dismiss and Motion to Strike with Exhibits 1120)(Fox, Adam) (rlu). (Entered: 07/05/2016)
6 Minute Order by Judge Jeffrey T. Miller: Motion Hearing as to 5 MOTION to Strike, 4 MOTION to Dismiss, set for 8/22/2016 is vacated and continued to 9/12/2016 10:00 AM in Courtroom 5D before Judge Jeffrey T. Miller (no document attached) (gac) (Entered: 07/11/2016)
7 NOTICE of Appearance by Robert Teel on behalf of Juan Romero, Frank Tiscareno (Attachments: # 1 Proof of Service)(Teel, Robert)Attorney Robert Teel added to party Juan Romero(pty:pla), Attorney Robert Teel added to party Frank Tiscareno(pty:pla) (rlu). (Entered: 07/14/2016)
8 AMENDED COMPLAINT with Jury Demand against All Defendants, filed by Juan Romero, Frank Tiscareno, Kenneth Elliott. (Attachments: # 1 Proof of Service) (Teel, Robert) (dls). (Entered: 07/26/2016)
9 Joint MOTION for Extension of Time to File Answer re 8 Amended Complaint by Securus Technologies, Inc.. (Attachments: # 1 Proposed Order)(Fox, Adam) qc email re proposed order on 8/5/2016 (rlu). (Entered: 08/04/2016)
10 ORDER Granting 9 Joint Motion to Extend Defendant's Time to Respond to Plaintiffs' First Amended Complaint. Defendant must answer or otherwise respond to Plaintiffs' first amended complaint by 8/26/2016. Defendant's motions to dismiss and strike (Doc. Nos. 4 and 5 ) are denied

08/26/2016 08/26/2016 09/15/2016 09/15/2016
09/19/2016
09/19/2016 09/19/2016 09/26/2016 09/26/2016

as moot in light of Plaintiffs' first amended complaint. Signed by Judge Jeffrey T. Miller on 8/8/2016. (rlu) (Entered: 08/08/2016)
11 MOTION to Dismiss by Securus Technologies, Inc.. (Attachments: # 1 Declaration of Ian Jones in support of Motion to Dismiss, # 2 Request for Judicial Notice in support of Motion to Dismiss)(Fox, Adam) (rlu). (Entered: 08/26/2016)
12 MOTION to Strike by Securus Technologies, Inc.. (Attachments: # 1 Appendix in support of Motion to Dismiss and Motion to Strike)(Fox, Adam) (rlu). (Entered: 08/26/2016)
13 Joint MOTION for Leave to File Excess Pages by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Proof of Service)(Marron, Ronald)Attorney Ronald Marron added to party Kenneth Elliott(pty:pla) (rlu). (Entered: 09/15/2016)
14 ORDER granting 13 Motion for Leave to Exceed the Page Limitation. The Court grants leave to file (1) a 30-page memorandum by Plaintiff in opposition to Defendants Motion to Dismiss Plaintiffs First Amended Complaint (Defendants Motion); and (2) a 13-page reply memorandum by Defendant in support of Defendants Motion. Signed by Judge Jeffrey T. Miller on 9/15/2016. (acc) (Entered: 09/15/2016)
15 NOTICE of Appearance by Beatrice Skye Resendes on behalf of Kenneth Elliott, Juan Romero, Frank Tiscareno (Attachments: # 1 Proof of Service)(Resendes, Beatrice)Attorney Beatrice Skye Resendes added to party Kenneth Elliott(pty:pla), Attorney Beatrice Skye Resendes added to party Juan Romero(pty:pla), Attorney Beatrice Skye Resendes added to party Frank Tiscareno(pty:pla) (rlu). (Entered: 09/19/2016)
16 RESPONSE in Opposition re 12 MOTION to Strike filed by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Proof of Service)(Resendes, Beatrice) (rlu). (Entered: 09/19/2016)
17 RESPONSE in Opposition re 11 MOTION to Dismiss filed by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Request for Judicial Notice, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Declaration of Christina Rivas, # 8 Proof of Service)(Teel, Robert) (rlu). (Entered: 09/19/2016)
18 REPLY to Response to Motion re 11 MOTION to Dismiss filed by Securus Technologies, Inc.. (Attachments: # 1 Declaration of Ian Jones, # 2 Opposition to Plaintiffs' Request for Judicial Notice)(Fox, Adam) (rlu). (Entered: 09/26/2016)
19 REPLY to Response to Motion re 12 MOTION to Strike filed by Securus Technologies, Inc.. (Attachments: # 1 Supplemental Appendix of Electronic Authorities)(Fox, Adam) (rlu). (Entered: 09/26/2016)

09/27/2016 10/24/2016
11/07/2016 11/25/2016 12/29/2016 01/06/2017
01/09/2017 01/13/2017

20 Minute Order by Judge Jeffrey T. Miller: Submitting, 12 MOTION to Strike, 11 MOTION to Dismiss. Motion Hearing set for 10/3/2016 10:00 AM before Judge Jeffrey T. Miller is vacated. Written order to follow. (no document attached) (gac) (Entered: 09/27/2016)
21 ORDER Granting in part and Denying in part Defendant's 11 Motion to Dismiss and Denying Defendant's 12 Motion to Strike Class Allegations. The court dismisses, with leave to amend, Plaintiffs' Fourth Cause of Action (Fraud and Intentional Misrepresentation). The court dismisses, without leave to amend, Plaintiffs' Seventh Cause of Action (Conversion). The court denies the remainder of Defendant's motion to dismiss, and the court denies Defendant's motion to strike. If Plaintiffs wish to file a second amended complaint to address their claim for intentional misrepresentation, they must do so within fourteen days of the entry of this order. Signed by Judge Jeffrey T. Miller on 10/24/2016. (rlu) (Entered: 10/24/2016)
22 SECOND AMENDED COMPLAINT with Jury Demand against Securus Technologies, Inc., filed by Juan Romero, Frank Tiscareno, Kenneth Elliott. (Attachments: # 1 Proof of Service) (Teel, Robert) (kas). (Entered: 11/07/2016)
23 MOTION to Dismiss Plaintiffs' Second Amended Complaint by Securus Technologies, Inc.. (Attachments: # 1 Appendix Appendix of Electronic Authorities)(Fox, Adam) (rlu). (Entered: 11/25/2016)
24 Notice to Withdraw as Attorney by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Proof of Service)(Resendes, Beatrice) (rlu). Modified on 1/3/2017 to change event type (rlu). (Entered: 12/29/2016)
25 NOTICE of Appearance by William Bradford Richards, Jr on behalf of Kenneth Elliott, Juan Romero, Frank Tiscareno (Attachments: # 1 Proof of Service)(Richards, William)Attorney William Bradford Richards, Jr added to party Kenneth Elliott(pty:pla), Attorney William Bradford Richards, Jr added to party Juan Romero(pty:pla), Attorney William Bradford Richards, Jr added to party Frank Tiscareno(pty:pla) (fth). (Entered: 01/06/2017)
26 RESPONSE in Opposition re 23 MOTION to Dismiss Plaintiffs' Second Amended Complaint filed by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Request for Judicial Notice, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Proof of Service)(Teel, Robert) (fth). (Entered: 01/09/2017)
27 Minute Order by Judge Jeffrey T. Miller: Submitting 23 MOTION to Dismiss Plaintiffs' Second Amended Complaint. Motion Hearing set for 1/23/2017 10:00 AM before Judge Jeffrey T. Miller is vacated. Written order to follow. (no document attached) (gac) (Entered: 01/13/2017)

01/13/2017 01/26/2017
02/08/2017 02/22/2017 03/10/2017
03/17/2017 03/19/2017

28 REPLY - Other re 23 MOTION to Dismiss Plaintiffs' Second Amended Complaint filed by Securus Technologies, Inc.. (Attachments: # 1 Opposition to Plaintiffs' Request for Judicial Notice, # 2 Appendix in Support of Defendant Securus Technologies, Inc.'s Reply)(Mork, Marisol) (Entered: 01/13/2017)
29 ORDER Granting in part and Denying in Part Defendant's 23 Motion to Dismiss Second Amended Complaint. The court denies Defendant's motion as to the 5/29/2012, "Customer Integrity Pledge" and 11/13/2015, press release, and grants Defendant's motion as to any information conveyed to the Sheriff. If Plaintiff can satisfy Rule 9(b) and California law in alleging specific misrepresentations that Defendant made to the Sheriff, it may file an amended complaint within fourteen days of this order. Signed by Judge Jeffrey T. Miller on 1/26/2017. (rlu) (Entered: 01/27/2017)
30 THIRD AMENDED COMPLAINT with Jury Demand Third Amended Complaint against All Defendants, filed by Juan Romero, Frank Tiscareno, Kenneth Elliott. (Attachments: # 1 Proof of Service) (Teel, Robert) (rlu). (Entered: 02/08/2017)
31 MOTION to Dismiss for Failure to State a Claim Plaintiffs' Third Amended Complaint by Securus Technologies, Inc.. (Attachments: # 1 Appendix of Electronic Authorities)(Fox, Adam) (rlu). (Entered: 02/22/2017)
32 Ex Parte MOTION for Discovery (Expedited) and Application for Order to Preserve and Restore Evidence by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Memo of Points and Authorities In Support of Ex Parte Application for Order to Expedite Discovery and Preserve and Restore Evidence, # 2 Declaration of Robert Teel, # 3 Exhibit 1 to Teel Decl., # 4 Exhibit 2 to Teel Decl., # 5 Request for Judicial Notice In Support of Application, # 6 Exhibit 1, # 7 Exhibit 2, # 8 Exhibit 3, # 9 Exhibit 4, # 10 Exhibit 5, # 11 Exhibit 6, # 12 Exhibit 7, # 13 Exhibit 8, # 14 Exhibit 9, # 15 Exhibit 10, # 16 Proof of Service)(Teel, Robert) (rlu). (Entered: 03/10/2017)
33 RESPONSE in Opposition re 31 MOTION to Dismiss for Failure to State a Claim Plaintiffs' Third Amended Complaint filed by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Proof of Service)(Teel, Robert)(acc). (Entered: 03/17/2017)
34 ORDER Setting Briefing Schedule : On 3/10/2017 Plaintiffs filed an Ex Parte Application for Expedited Discovery. 32 Accordingly, Responses are due by 3/31/2017 and Replies are due by 4/7/2017. Signed by Magistrate Judge Mitchell D. Dembin on 03/19/2017.(no document attached) (atk) (Entered: 03/19/2017)

03/27/2017 03/27/2017 03/29/2017
03/31/2017 04/07/2017
04/11/2017 04/12/2017 04/17/2017 04/28/2017

35 Minute Order by Judge Jeffrey T. Miller: Submitting, 31 MOTION to Dismiss for Failure to State a Claim Plaintiffs' Third Amended Complaint. Motion Hearing set for 4/3/2017 10:00 AM before Judge Jeffrey T. Miller is vacated. Written order to follow. (no document attached) (gac) (Entered: 03/27/2017)
36 REPLY - Other re 31 MOTION to Dismiss for Failure to State a Claim Plaintiffs' Third Amended Complaint filed by Securus Technologies, Inc.. (Attachments: # 1 Appendix of Electronic Authorities Cited in the Reply in Support of Motion to Dismiss Plaintiffs' Third Amended Complaint)(Fox, Adam) (rlu). (Entered: 03/27/2017)
37 ORDER Granting Defendant's 31 Motion to Dismiss Portions of Plaintiffs' Third Amended Complaint. As Plaintiffs have had multiple attempts to adequately plead fraud based on information conveyed to the Sheriff and have not been able to do so, the court's order is without leave to amend. Signed by Judge Jeffrey T. Miller on 3/29/2017. (rlu) (Entered: 03/29/2017)
38 RESPONSE in Opposition re 32 Ex Parte MOTION for Discovery (Expedited) and Application for Order to Preserve and Restore Evidence filed by Securus Technologies, Inc.. (Attachments: # 1 Declaration of Ian Jones, # 2 Appendix of Electronic Authorities)(Fox, Adam) (fth). (Entered: 03/31/2017)
39 REPLY - Other re 32 Ex Parte MOTION for Discovery (Expedited) and Application for Order to Preserve and Restore Evidence, 38 Response in Opposition to Motion, filed by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Declaration Jeffrey Hansen, # 2 Exhibit A, # 3 Request for Judicial Notice, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Proof of Service)(Teel, Robert) (rlu). (Entered: 04/07/2017)
40 OBJECTION by Securus Technologies, Inc. re 39 Reply - Other, . (Attachments: # 1 Supplemental Appendix of Electronic Authorities)(Fox, Adam) (rlu). (Entered: 04/11/2017)
41 ANSWER to 30 Amended Complaint by Securus Technologies, Inc..(Fox, Adam) (rlu). (Entered: 04/12/2017)
42 ORDER denying 32 Plaintiffs' Ex Parte MOTION for Discovery (Expedited) and Application for Order to Preserve and Restore Evidence. Signed by Magistrate Judge Mitchell D. Dembin on 4/17/2017. (Dembin, Mitchell) (Entered: 04/17/2017)
43 NOTICE AND ORDER for Telephonic Early Neutral Evaluation Conference: Early Neutral Evaluation set for 5/26/2017 at 2:30 PM before Magistrate Judge Mitchell D. Dembin. Joint Discovery Plan due 5/19/2017. Signed by Magistrate Judge Mitchell D. Dembin on 4/28/2017.(rlu) Modified on 5/23/2017 (dls). (Entered: 04/28/2017)

05/23/2017 05/26/2017 05/30/2017 06/28/2017
07/03/2017 07/05/2017 07/10/2017
08/01/2017 08/01/2017

44 NOTICE of Teleconference Information Sheet for the Telephonic ENE/CMC set for May 26, 2017 at 2:30PM. (atk) (Entered: 05/23/2017)
45 Minute Entry for proceedings held before Magistrate Judge Mitchell D. Dembin: A telephonic Early Neutral Evaluation/Case Management Conference was held on 5/26/2017. No settlement. Order to follow.(Plaintiff Attorney Robert Teel). (Defendant Attorney Adam Fox, Gretchen Ramos). (no document attached) (atk) (Entered: 05/26/2017)
46 Case Management Order Regulating Discovery through Filing of Class Certification Motion. Signed by Magistrate Judge Mitchell D. Dembin on 5/30/2017. (fth) (Entered: 05/30/2017)
47 NOTICE of Appearance by Adam Belsey on behalf of Kenneth Elliott, Juan Romero, Frank Tiscareno (Attachments: # 1 Proof of Service)(Belsey, Adam)Attorney Adam Belsey added to party Kenneth Elliott(pty:pla), Attorney Adam Belsey added to party Juan Romero(pty:pla), Attorney Adam Belsey added to party Frank Tiscareno(pty:pla) (rlu). (Entered: 06/28/2017)
48 MOTION to Withdraw as Attorney William B. Richards by Kenneth Elliott, Juan Romero. (Attachments: # 1 Proof of Service)(Marron, Ronald) (rlu). (Entered: 07/03/2017)
49 ORDER Granting Plaintiffs' 48 Motion to Withdraw as Attorney William Bradford Richards, Jr. Signed by Judge Jeffrey T. Miller on 7/5/2017. (rlu) (Entered: 07/05/2017)
50 Notice of Document Discrepancies and Order Thereon by Judge Jeffrey T. Miller Rejecting Document: Notice of Motion and Motion to Intervene, from Pedro Rodriguez. Non-compliance with local rule(s), Civ. L. Rule 7.1: Lacking memorandum of points and authorities in support as a separate document, OTHER: Civ.L. Rule 5.1 - Improper format; illegible, Rejected document was returned to the filer. Signed by Judge Jeffrey T. Miller on 7/10/2017.(All non-registered users served via U.S. Mail Service)(rlu) (Additional attachment(s) added on 7/10/2017: # 1 Rejected Document) (rlu). (Entered: 07/10/2017)
51 MOTION for Relief under Rule 60(b), by Pedro Rodriguez. (jpp) (Entered: 08/01/2017)
52 ORDER granting 51 Non-Party Pedro Rodriguez's Motion for reconsideration of Court's rejection of his motion to intervene. The court accepts for filing, nunc pro tunc to the date received, the previously rejected motion to intervene (Doc 50-1). Plaintiffs Juan Romero, Frank Tiscareno, and Kenneth Elliott and Defendant Securus Technologies, Inc. have until 9/05/2017, to file and serve a response to Rodriguezs motion to intervene. Rodriguezs reply, if he chooses to submit one, is due on or before 9/26/2017. Signed by Judge Jeffrey T. Miller on 8/01/2017. (All

08/01/2017 08/28/2017 08/29/2017 08/31/2017 09/05/2017 09/05/2017 09/22/2017
09/22/2017 10/02/2017 10/10/2017

non-registered users served via U.S. Mail Service)(jpp) (Entered: 08/01/2017)
53 MOTION to Intervene by Pedro Rodriguez. (Attachments: # 1 part 2 of 3, # 2 part 3 of 3). NUNC PRO TUNC 7/06/2017(jpp) (Entered: 08/01/2017)
54 MOTION to Withdraw as Attorney by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Proof of Service)(Marron, Ronald) (jpp). (Entered: 08/28/2017)
55 ORDER granting 54 Plaintiffs' Motion to withdraw Attorney Adam T. Belsey. Signed by Judge Jeffrey T. Miller on 8/29/2017. (All nonregistered users served via U.S. Mail Service)(jpp) (Entered: 08/29/2017)
56 NOTICE of Change of Address by Robert L. Teel (Attachments: # 1 Proof of Service)(Teel, Robert) (jpp). (Entered: 08/31/2017)
57 RESPONSE in Opposition re 53 MOTION to Intervene of Pedro Rodriguez filed by Securus Technologies, Inc.. (Fox, Adam) (jpp). (Entered: 09/05/2017)
58 RESPONSE in Opposition re 51 MOTION for Reconsideration, 53 MOTION to Intervene filed by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Proof of Service)(Teel, Robert) (jpp). (Entered: 09/05/2017)
59 Joint MOTION for Discovery Determination of Dispute by Kenneth Elliott. (Attachments: # 1 Exhibit 1 to Joint Motion for Determination of Discovery Dispute, # 2 Exhibit 2 to Joint Motion for Determination of Discovery Dispute, # 3 Exhibit 3 to Joint Motion for Determination of Discovery Dispute, # 4 Declaration of Compliance with Chambers Rule IV. Requirements, # 5 Proof of Service)(Teel, Robert)(jpp) (Entered: 09/22/2017)
60 MOTION for Discovery to File Document Under Seal by Kenneth Elliott. (Attachments: # 1 Proof of Service)(Teel, Robert) (aef). (Entered: 09/22/2017)
61 Minute Order by Judge Jeffrey T. Miller: Submitting, 53 MOTION to Intervene by Pedro Rodriguez. Written order to follow. (no document attached) (gac) (Entered: 10/02/2017)
62 MOTION to Certify Class and to Appoint Class Counsel by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Robert Teel, # 3 Table of Exhibits, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, # 11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Exhibit 11, # 15 Exhibit 12, # 16 Exhibit 13, # 17 Exhibit 14, # 18 Exhibit 15, # 19 Exhibit 16, # 20 Exhibit 17,

10/10/2017 10/13/2017 10/16/2017
10/16/2017 10/17/2017

# 21 Exhibit 18, # 22 Exhibit 19, # 23 Exhibit 20, # 24 Exhibit 21, # 25 Exhibit 22, # 26 Exhibit 23, # 27 Exhibit 24, # 28 Exhibit 25, # 29 Exhibit 26, # 30 Exhibit 27, # 31 Exhibit 28, # 32 Exhibit 29, # 33 Exhibit 30, # 34 Exhibit 31, # 35 Exhibit 32, # 36 Exhibit 33, # 37 Request for Judicial Notice, # 38 Declaration of Kenneth Elliott, # 39 Exhibit 1- Elliott Dec, # 40 Exhibit 2- Elliott Dec, # 41 Declaration of Juan Romero, # 42 Exhibit 1-Romero Dec, # 43 Declaration of Frank Tiscareno, # 44 Exhibit 1-Tiscareno Dec, # 45 Declaration of Ronald Marron, # 46 Exhibit 1- Marron Dec, # 47 Exhibit 2-Marron Dec, # 48 Declaration of Robert Teel (Supplemental), # 49 Declaration of Patrick Ivie, # 50 Proof of Service)(Teel, Robert) (jpp). (Entered: 10/10/2017)
63 MOTION to File Documents Under Seal (With attachments)(Teel, Robert) Modified on 10/11/2017- QC mailer sent re sealed lodged proposed document not filed (aef). (Entered: 10/10/2017)
64 ORDER granting in part and denying in part 60 Motion to Seal. Good cause appears to file Exhibit B to Exhibit 1 of the Joint Motion to Determine Discovery Dispute [59-1]. The remainder of the document is to be filed publicly. Signed by Magistrate Judge Mitchell D. Dembin on 10/13/17. (no document attached) (Dembin, Mitchell) (Entered: 10/13/2017)
66 ORDER granting in part and denying in part 59 Joint MOTION for Discovery Determination of Dispute. This Joint Motion presents Plaintiffs' motion to compel further responses to interrogatories, production of documents and answers to requests for admission. As provided herein, the motion is GRANTED IN PART AND DENIED IN PART. To the extent that the Court has ordered further responses, production and answers, such must be forthcoming within 14 days of the filing of this Order. Signed by Magistrate Judge Mitchell D. Dembin on 10/16/17. (Dembin, Mitchell) (Entered: 10/16/2017)
67 ***FILED AS SEALED DOCUMENT ON 10/13/2017*** - SEALED LODGED Proposed Document re: 60 MOTION to Seal a Previously Filed Document. Document to be filed by Clerk if Motion to Seal is granted. (With attachments)(Teel, Robert) Modified on 10/16/2017 to replace with correct pdf; add lodgment file date (aef). (Entered: 10/16/2017)
68 NOTICE of Appearance by Michael Houchin on behalf of Kenneth Elliott, Juan Romero, Frank Tiscareno (Attachments: # 1 Proof of Service)(Houchin, Michael)Attorney Michael Houchin added to party Kenneth Elliott(pty:pla), Attorney Michael Houchin added to party Juan Romero(pty:pla), Attorney Michael Houchin added to party Frank Tiscareno(pty:pla) (jpp). (Entered: 10/17/2017)

10/24/2017 10/30/2017 10/30/2017
10/30/2017
10/31/2017 11/06/2017 11/07/2017

69 Joint MOTION for Extension of Time to Amend 46 Order Following Case Management Conference by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Declaration of Robert Teel Regarding Joint Motion, # 2 Declaration of Tania Rice Regarding Joint Motion, # 3 Proof of Service)(Teel, Robert) (Entered: 10/24/2017)
70 MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE (ECF NO. 66) re 66 Order on Motion for Discovery,, by Securus Technologies, Inc.. (Attachments: # 1 Exhibit A - Declaration of Gretchen A. Ramos, # 2 Exhibit B Defendant's Proposed Stipulated Protective Order)(Fox, Adam) (jpp). (Entered: 10/30/2017)
71 STRICKEN PER ORDER 78 - RESPONSE in Opposition re 62 MOTION to Certify Class and to Appoint Class Counsel filed by Securus Technologies, Inc.. (Attachments: # 1 Evidentiary Objections to Plaintiffs' Declarations in Support of Plaintiffs' Motion for Class Certification, # 2 Appendix of Electronic Authorities cited in Support of Securus's Oppositions to Plaintiffs' Motion for Class Certification and Plaintiffs' Request for Judicial Notice, # 3 Combined Exhibits 1-29 to Appendix of Electronic Authorities cited in Support of Securus's Oppositions)(Fox, Adam) (jpp). Modified on 11/8/2017 to strike per order 78 (jpp). (Entered: 10/30/2017)
72 RESPONSE in Opposition re 62 MOTION to Certify Class and to Appoint Class Counsel filed by Securus Technologies, Inc.. (Attachments: # 1 Securus' Opposition to Plaintiffs' Request for Judicial Notice in Support of Plaintiffs' Motion for Class Certification, # 2 Securus' Evidentiary Objections to Plaintiffs' Declarations in Support of Plaintiffs' Motion for Class Certification, # 3 Appendix of Electronic Authorities Cited in Support of Securus' Oppositions to Plaintiffs' Motion for Class Certification and Plaintiffs' Request for Judicial Notice, # 4 Exhibit [Combined Exhibits 1-29] to Appendix of Electronic Authorities)(Fox, Adam) (jpp). (Entered: 10/30/2017)
73 ORDER denying 53 Motion to Intervene. Signed by Judge Jeffrey T. Miller on 10/31/2017. (All non-registered users served via U.S. Mail Service)(jpp) (Entered: 10/31/2017)
74 REPLY to Response to Motion re 62 MOTION to Certify Class and to Appoint Class Counsel filed by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Declaration of Robert Teel re Delayed Discovery Responses, # 2 Exhibit 1 to Teel Decl., # 3 Exhibit 2 to Teel Decl., # 4 Declaration of Kenneth Elliott re Correcting Scrivener's Errors, # 5 Proof of Service)(Teel, Robert) (jpp). (Entered: 11/06/2017)
75 MINUTE ORDER: 62 Motion to Certify Class and to Appoint Class Counsel is currently set for November 13, 2017 at 10:00 AM. The Court finds this matter suitable for determination on the papers and without oral

11/07/2017 11/07/2017
11/08/2017 11/20/2017 11/20/2017
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11/28/2017

argument. Accordingly, no appearances are required and the hearing shall be taken off calendar. SO ORDERED by Judge Jeffrey T. Miller. (no document attached) (pdc) (Entered: 11/07/2017)
76 Ex Parte MOTION (Unopposed) to Strike Erroneous Docket Entry 71 Filed by Securus Technologies, Inc.. (Fox, Adam) (jpp). (Entered: 11/07/2017)
77 ORDER Granting 63 Plaintiffs' Motion to File Documents Under Seal. The Court grants the motion. The Clerk of Court is directed to file under seal the attached documents as Exhibits 1 through 7 to the instant motion currently listed as ECF entry number 63. Signed by Judge Jeffrey T. Miller on 11/7/2017. (aef) (Entered: 11/08/2017)
79 ORDER granting 76 Defendant's Motion to Strike erroneous docket entry 71. Signed by Judge Jeffrey T. Miller on 11/08/2017. (jpp) (Entered: 11/08/2017)
80 ORDER denying 69 Motion to modify Plaintiff's deadline to amend pleadings. Signed by Magistrate Judge Mitchell D. Dembin on 11/20/2017. (jpp) (Entered: 11/20/2017)
81 RESPONSE in Opposition re 70 MOTION FOR NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE (ECF NO. 66) re 66 Order on Motion for Discovery,, filed by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Declaration of Robert Teel, # 2 Proof of Service)(Marron, Ronald) (jpp). (Entered: 11/20/2017)
82 REPLY to Response to Motion re 70 MOTION FOR NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE JUDGE (ECF NO. 66) re 66 Order on Motion for Discovery,, filed by Securus Technologies, Inc.. (Fox, Adam) (jpp). (Entered: 11/27/2017)
83 Minute Order by Judge Jeffrey T. Miller: Submitting, 70 Motion for Non-dispositive Pretrial Order of Magistrate Judge, 66 Order on Motion for Discovery. Motion Hearing set for 12/4/2017 at 11:00 AM before Judge Jeffrey Miller is vacated. Written order to follow. (no document attached) (gac) (Entered: 11/28/2017)
84 Notice of Document Discrepancies and Order Thereon by Judge Jeffrey T. Miller Rejecting Document: Notice of Change of Address and Request for Information.. Non-compliance with local rule(s), OTHER: Per Docket entry #73, Pedro Rodriguezs Motion to Intervene was denied, Pedro Rodrigues is not a party to this case., Rejected document was returned to the filer. Signed by Judge Jeffrey T. Miller on 11/28/2017.(All nonregistered users served via U.S. Mail Service)(jpp) (Additional attachment(s) added on 11/28/2017: # 1 rejected document) (jpp). (Entered: 11/28/2017)

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01/05/2018 01/08/2018

85 Ex Parte MOTION for Discovery Determination of Dispute (Joint Motion with No Contribution) by Kenneth Elliott. (Attachments: # 1 Exhibit 1 to Discovery Motion, # 2 Exhibit 2 to Discovery Motion, # 3 Declaration of Compliance with Chambers Rule IV Requirements, # 4 Proof of Service)(Teel, Robert) (jpp). (Entered: 11/29/2017)
86 NOTICE of Intent to Respond to Ex Parte Motion by Securus Technologies, Inc. re 85 Ex Parte MOTION for Discovery Determination of Dispute (Joint Motion with No Contribution) (Attachments: # 1 Declaration of Adam R. Fox In Support of Notice of Intent to Respond to Ex Parte Motion)(Fox, Adam) (jpp). (Entered: 12/05/2017)
87 ORDER: An Ex Parte Motion for Joint Determination of Discovery Dispute was filed by Plaintiffs. 85 A Notice of Intent to Respond was filed by Defendant. 86 Accordingly, Defendant may file a response on or before December 22, 2017. Signed by Magistrate Judge Mitchell D. Dembin on 12/15/2017.(no document attached) (atk) (Entered: 12/15/2017)
88 RESPONSE to Motion re 85 Ex Parte MOTION for Discovery Determination of Dispute (Joint Motion with No Contribution) and to Compel Discovery Responses filed by Securus Technologies, Inc.. (Fox, Adam) (jpp). (Entered: 12/22/2017)
89 ORDER: A Discovery Hearing regarding ECF No. 85 will be held on January 8, 2018 at 10:00 AM before Magistrate Judge Mitchell D. Dembin, Courtroom 1E in the Edward J. Schwartz Courthouse, 221 West Broadway, San Diego, CA, 92101. Signed by Magistrate Judge Mitchell D. Dembin on 01/02/2018.(no document attached) (atk) (Entered: 01/02/2018)
90 Notice of Document Discrepancies and Order Thereon by Judge Jeffrey T. Miller Rejecting Document: Letter to Hon. Judge Miller re Notice and Motion to Vacate Dismissal.. Non-compliance with local rule(s), L.R. Cv. 5.1(h): Filer not a party to the case; L.R. Cv. 83.9: Ex parte communication is prohibited. Rejected document was returned to the filer. Signed by Judge Jeffrey T. Miller on 1/05/2018.(All non-registered users served via U.S. Mail Service)(jpp) (Additional attachment(s) added on 1/5/2018: # 1 rejected document) (jpp). (Entered: 01/05/2018)
91 ORDER denying 70 Defendant's Motion for relief from non-dispositive Pretrial Order of Magistrate Judge. Signed by Judge Jeffrey T. Miller on 1/05/2018. (jpp) (Entered: 01/05/2018)
92 Minute Order for proceedings held before Magistrate Judge Mitchell D. Dembin denying 85 Motion for Discovery: A Motion Hearing was held on January 8, 2018. regarding Plaintiffs' Ex Parte Motion for Discovery. The Court issued an oral ruling which is fully incorporated herein and includes the following: 1) Plaintiffs' request for RFPs regarding

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production of audio recordings is denied. The Court finds Defendant's response that no recordings exist responsive to Plaintiffs' request sufficient. 2) Plaintiffs' request for a further response from Defendant regarding specific Contention Interrogatories is denied. The Court finds Defendant's responses legally sufficient. (CD# 1/8/2018 10:36-11:02). (Plaintiff Attorney Robert Teel).(Defendant Attorney Marisol Mork). (no document attached) (atk) (Entered: 01/12/2018)
93 ORDER denying Plaintiffs' 62 Motion to Certify Class and to Appoint Class Counsel. Court denies the motion without prejudice because Plaintiffs fail to sufficiently identify an ascertainable and manageable class. In the event Plaintiffs' additional discovery efforts prove fruitful, they may renew their motion for class certification within 90 days of the entry of this Order. Signed by Judge Jeffrey T. Miller on 4/12/2018. (jah) (Entered: 04/13/2018)
94 NOTICE of Appearance by Nicholas J. Fox on behalf of Kenneth Elliott, Juan Romero, Frank Tiscareno (Fox, Nicholas)Attorney Nicholas J. Fox added to party Kenneth Elliott(pty:pla), Attorney Nicholas J. Fox added to party Juan Romero(pty:pla), Attorney Nicholas J. Fox added to party Frank Tiscareno(pty:pla) (jpp). (Entered: 04/19/2018)
95 NOTICE of Appearance by Eileen Regina Ridley on behalf of Kenneth Elliott, Juan Romero, Frank Tiscareno (Ridley, Eileen)Attorney Eileen Regina Ridley added to party Kenneth Elliott(pty:pla), Attorney Eileen Regina Ridley added to party Juan Romero(pty:pla), Attorney Eileen Regina Ridley added to party Frank Tiscareno(pty:pla) (jpp). (Entered: 04/19/2018)
96 NOTICE of Appearance by J. Mark Waxman on behalf of Kenneth Elliott, Juan Romero, Frank Tiscareno (Waxman, J.)Attorney J. Mark Waxman added to party Kenneth Elliott(pty:pla), Attorney J. Mark Waxman added to party Juan Romero(pty:pla), Attorney J. Mark Waxman added to party Frank Tiscareno(pty:pla) (Entered: 04/20/2018)
97 ORDER: A telephonic Case Management Conference will be held 4/30/2018 at 9:15 AM before Magistrate Judge Mitchell D. Dembin. Only counsel are required to participate. Counsel are ordered to use the dial-in information filed as a separate notice to access the Court's teleconference service. (The teleconference information sheet can be accessed through ECF using the login information assigned to an attorney of record in the case and then selecting the report option. On the next screen, the docket sheet option should be selected, prompting the user for a PACER login (assigned to the attorney of record). Once the PACER login is completed, the case number can be entered which will display the docket sheet for the case and allow the user to open the teleconference information sheet.). Signed by Magistrate Judge Mitchell

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04/22/2018
05/22/2018 05/23/2018
06/11/2018
06/13/2018 06/14/2018 06/15/2018

D. Dembin on 04/20/2018.(no document attached) (atk) (Entered: 04/20/2018)
98 NOTICE of Teleconference Information Sheet. Teleconference set for 04/30/2018 at 9:15AM. (atk) (Entered: 04/20/2018)
99 MOTION to Amend/Correct 93 Order on Motion to Certify Class, by Securus Technologies, Inc.. (Attachments: # 1 Declaration of Adam R. Fox in Support of Motion to Alter or Amend the Order Denying Motion for Class Certification, # 2 Appendix, # 3 Exhibit 1 to Appendix, # 4 Exhibit 2 to Appendix, # 5 Exhibit 3 to Appendix, # 6 Exhibit 4 to Appendix, # 7 Proposed Order)(Fox, Adam) (jpp). (Entered: 04/20/2018)
100 ORDER: On the Court's own motion, the telephonic Case Management Conference scheduled for April 30, 2018 is vacated pending resolution of Defendant's Motion to Amend/Correct Order on Motion to Certify Class. 99 . A case management conference may be rescheduled upon request following a ruling on Defendant's motion. Signed by Magistrate Judge Mitchell D. Dembin on 04/22/2018.(no document attached) (atk) (Entered: 04/22/2018)
101 MOTION for Partial Summary Judgment by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Memo of Points and Authorities, # 2 Statement of Facts, # 3 Request for Judicial Notice)(Fox, Nicholas)(jpp). (Entered: 05/22/2018)
102 ORDER CONTINUING HEARING DATES: Motion Hearing re 99 MOTION to Amend/Correct: 93 Order on Motion to Certify Class; 101 MOTION for Partial Summary Judgment is vacated and continued to 7/2/2018 10:00 AM in Courtroom 5D before Judge Jeffrey T. Miller. Signed by Judge Jeffrey T. Miller on May 22, 2018.(gac) (Entered: 05/23/2018)
103 RESPONSE in Opposition re 101 MOTION for Partial Summary Judgment filed by Securus Technologies, Inc.. (Attachments: # 1 Responsive Separate Statement of Undisputed Facts, # 2 Request for Judicial Notice, # 3 Appendix of Electronic Authorities, # 4 Proposed Order Granting Request for Judicial Notice)(Fox, Adam) QC mailer proposed order should not be file in CM/ECF (jjg). (Entered: 06/11/2018)
104 STRICKEN PER ORDER 105 (Entered: 06/13/2018)
105 Order Striking Document 104 Response in Opposition to Motion, filed by Frank Tiscareno, Juan Romero, Kenneth Elliott as untimely filed. Signed by Judge Jeffrey T. Miller on 6/14/2018.(gac) (Entered: 06/14/2018)
106 MOTION for Reconsideration re 105 Order Striking Document by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration, # 3 Index to Exhibits to

06/15/2018 06/18/2018 06/18/2018 06/18/2018 06/18/2018 06/19/2018
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Declaration of Eileen Ridley, # 4 Exhibit 1 to Declaration of Eileen Ridley, # 5 (Proposed) Order)(Ridley, Eileen) (jpp). (Entered: 06/15/2018)
107 Ex Parte MOTION to Shorten Time for Hearing on Plaintiffs' Motion for Relief Under Rule 60 by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Declaration of Eileen R. Ridley, # 2 Index to Exhibits to Decl. of Eileen R. Ridley, # 3 Exhibit 1 to Declaration of Eileen R. Ridley)(Ridley, Eileen) (jpp). (Entered: 06/15/2018)
108 RESPONSE in Opposition re 107 Ex Parte MOTION to Shorten Time for Hearing on Plaintiffs' Motion for Relief Under Rule 60 filed by Securus Technologies, Inc.. (Attachments: # 1 Declaration of Adam R. Fox, # 2 Declaration of Marisol Mork, # 3 Appendix of Electronic Authorities)(Fox, Adam) (jpp). (Entered: 06/18/2018)
109 RESPONSE in Support re 101 MOTION for Partial Summary Judgment by Plaintiffs' filed by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Fox, Nicholas) (jpp). (Entered: 06/18/2018)
110 REPLY - Other re 107 Ex Parte MOTION to Shorten Time for Hearing on Plaintiffs' Motion for Relief Under Rule 60 filed by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Ridley, Eileen) (jpp). (Entered: 06/18/2018)
111 ORDER granting Plaintiffs' motion for relief from Court's order striking opposition; denying ex parte application as moot. Signed by Judge Jeffrey T. Miller on 6/18/2018. (jpp) (Entered: 06/19/2018)
112 RESPONSE in Opposition re 99 MOTION to Amend/Correct 93 Order on Motion to Certify Class, filed by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Declaration of Robert Teel ISO Plaintiffs' Opposition, # 2 Index of Exhibits to Teel Declaration, # 3 Exhibit 1 to Teel Declaration, # 4 Exhibit 2 to Teel Declaration, # 5 Exhibit 3 to Teel Declaration)(Fox, Nicholas) (jpp). (Entered: 06/19/2018)
113 REPLY to Response to Motion re 99 MOTION to Amend/Correct 93 Order on Motion to Certify Class, filed by Securus Technologies, Inc.. (Attachments: # 1 Appendix of Electronic Authorities)(Fox, Adam) (jpp). (Entered: 06/25/2018)
114 Minute Order by Judge Jeffrey T. Miller: Submitting, 99 MOTION to Amend/Correct 93 Order on Motion to Certify Class, 101 MOTION for Partial Summary Judgment. Motion Hearing set for 7/2/2018 10:00 AM before Judge Jeffrey T. Miller is vacated. Written order to follow. (no document attached) (gac) (Entered: 06/26/2018)
115 MOTION For an Order Preventing the Deposition of Frank Clamser From Proceeding on June 28 by Securus Technologies, Inc..

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06/27/2018
06/28/2018 07/11/2018

(Attachments: # 1 Declaration of Adam R. Fox)(Fox, Adam) (jpp). (Entered: 06/27/2018)
116 ORDER granting 115 Defendant's Ex Parte MOTION For an Order Preventing the Deposition of Non-Party Frank Clamser From Proceeding on June 28, 2018. Signed by Magistrate Judge Mitchell D. Dembin on 6/27/18. (Dembin, Mitchell) (Entered: 06/27/2018)
117 Request to Appear Pro Hac Vice ( Filing fee received: $ 206 receipt number 0974-11380216.) (Application to be reviewed by Clerk.) (Raux, Geoffrey) (mdc) (Entered: 06/27/2018)
118 PRO HAC APPROVED re 117 : Geoffrey M. Raux appearing for Plaintiffs Kenneth Elliott, Juan Romero, Frank Tiscareno. (no document attached) (mdc) (Entered: 06/27/2018)
119 STRICKEN PER ORDER 121 - MOTION for Extension of Time to File Renewed Motion for Class Certification and to Order Further Discovery by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Memo of Points and Authorities ISO, # 2 Declaration of Robert Teel ISO, # 3 Declaration of Nicholas Fox ISO, # 4 Proposed Order)(Fox, Nicholas) (jpp). Modified on 6/28/2018 to strike per order 121 (jpp). (Entered: 06/27/2018)
120 MOTION to Shorten Time (Ex Parte Application for OST) for Hearing on Plaintiffs' Motion for Extension of Time to File Renewed Motion for Class Certification and to Order Further Discovery by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Declaration of Robert Teel ISO, # 2 Declaration of Nicholas Fox ISO, # 3 Proposed Order)(Fox, Nicholas) (jpp). (Entered: 06/27/2018)
121 ORDER denying 120 Plaintiff's ex parte application for order shortening time and striking 119 motion for extension to file renewed motion. Signed by Judge Jeffrey T. Miller on 6/28/2018. (jpp) (Entered: 06/28/2018)
122 MOTION to Certify Class (Renewed Motion) Or, In The Alternative, Extension of Time by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Eileen R. Ridley, # 3 Exhibit Index, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Declaration of J. Mark Waxman, # 9 Exhibit Index - Waxman Dec, # 10 Exhibit A - Waxman Dec, # 11 Exhibit B - Waxman Dec, # 12 Exhibit C - Waxman Dec, # 13 Declaration of Nicholas J. Fox, # 14 Exhibit A - Fox Dec, # 15 Declaration of Wendy A. DelValle, # 16 Exhibit Index - DelValle Dec, # 17 Exhibit 1 - DelValle Dec, # 18 Exhibit 2 - DelValle Dec, # 19 Exhibit 3 - DelValle Dec)(Ridley, Eileen) (aef). (Entered: 07/11/2018)

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123 NOTICE of Hearing: Status Hearing set for 8/6/2018 11:00 AM in Courtroom 5D before Judge Jeffrey T. Miller. (no document attached) (gac) (Entered: 07/31/2018)
124 RESPONSE in Opposition re 122 MOTION to Certify Class (Renewed Motion) Or, In The Alternative, Extension of Time filed by Securus Technologies, Inc.. (Attachments: # 1 Declaration of Ankur Desai, # 2 Declaration of Adam R. Fox with Exhs. A-K, # 3 Request for Judicial Notice with Exhs. A-F, # 4 Appendix with Exhs. 1-19)(Fox, Adam) (jpp). (Entered: 08/02/2018)
126 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Status Hearing held on 8/6/2018. (Plaintiff Attorney Nick Fox). (Defendant Attorney Adam Fox). (no document attached) (gac) (Entered: 08/08/2018)
125 ORDER: On July 11, 2018, Plaintiffs filed their Motion for Class Certification. 122 . Accordingly, It Is Hereby Ordered: 1) On or before August 16, 2018, counsel must meet and confer and file a joint discovery plan proposing remaining discovery and pretrial dates. 2) A telephonic Case Management Conference will be held August 21, 2018 at 9:15 AM before Magistrate Judge Mitchell D. Dembin. Only counsel are required to participate. Counsel are ordered to use the dial-in information filed as a separate notice to access the Court's teleconference service. (The teleconference information sheet can be accessed through ECF using the login information assigned to an attorney of record in the case and then selecting the report option. On the next screen, the docket sheet option should be selected, prompting the user for a PACER login (assigned to the attorney of record). Once the PACER login is completed, the case number can be entered which will display the docket sheet for the case and allow the user to open the teleconference information sheet.) Signed by Magistrate Judge Mitchell D. Dembin on 08/07/2018.(no document attached) (atk) (Entered: 08/07/2018)
127 ORDER denying 99 Motion to Amend/Correct Order Denying Motion for Class Certification. Signed by Judge Jeffrey T. Miller on 8/9/2018. (sjt) (Entered: 08/09/2018)
128 REPLY to Response to Motion re 122 MOTION to Certify Class (Renewed Motion) Or, In The Alternative, Extension of Time filed by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Ridley, Eileen) (jpp). (Entered: 08/13/2018)
129 Joint MOTION to Stay Rulings by Court on Pending Motions by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Fox, Nicholas) (mpl). (Entered: 08/13/2018)
130 ORDER Granting 129 Joint Motion for Abeyance of Pending Rulings by Court on (1) Plaintiffs' Renewed Motion for Class Certification and (2)

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Plaintiffs' Motion for Partial Summary Judgment. It is Ordered, 1. The Parties' Joint Motion For Abeyance Of Pending Rulings is granted. 2. The court will hold in abeyance its rulings on (1) Plaintiffs' Renewed Motion for Class Certification; and (2) Plaintiffs' Motion for Partial Summary Judgment, for a period of 60 days from submission of this Joint Motion, through and including 10/12/2018. 3. The hearing scheduled for 8/20/2018, on Plaintiffs' Renewed Motion for Class Certification, is hereby vacated. The court resets the hearing for Monday, 10/15/2018, at 10:00 a.m., in Courtroom 5D before Judge Jeffrey T. Miller. Signed by Judge Jeffrey T. Miller on 8/14/2018. (mpl) (Entered: 08/14/2018)
131 JOINT DISCOVERY PLAN by Kenneth Elliott, Juan Romero, Frank Tiscareno re 125 Order, Set Hearings, Pursuant to Fed. R. Civ. P. 26(F) (Fox, Nicholas) (acc). (Entered: 08/15/2018)
132 NOTICE of Teleconference Information Sheet. Teleconference set for 08/21/2018 at 9:15AM. (atk) (Entered: 08/15/2018)
133 ORDER: On August 14, 2018, the District Court granted the parties' motion to stay its ruling on Plaintiffs' pending Motion for Class Certification and Motion for Summary Judgment so the parties can pursue private mediation. 129 130 . Accordingly, the telephonic Case Management Conference scheduled for August 21, 2018, [See ECF No. 125] is CONTINUED to November 1, 2018. Counsel only are required to participate. A new telephonic information sheet will be filed. Signed by Magistrate Judge Mitchell D. Dembin on 08/17/2018.(no document attached) (atk) (Entered: 08/17/2018)
134 ORDER Resetting Hearings on Motion for Class Certification and Motion For Partial Summary Judgment. The hearing scheduled for 10/15/2018 on 122 Plaintiffs' Renewed Motion For Class Certification, is hereby vacated. Motion Hearing is continued to 11/5/2018 10:00 AM in Courtroom 5D before Judge Jeffrey T. Miller. Signed by Judge Jeffrey T. Miller on 10/10/2018.(sjm) (Entered: 10/11/2018)
135 ORDER: The telephonic Case Management Conference scheduled for November 1, 2018 is CONTINUED to November 19, 2018 at 9:30 AM before Magistrate Judge Mitchell D. Dembin. A Telephonic Information Sheet will follow as a separate filing. Signed by Magistrate Judge Mitchell D. Dembin on 10/31/2018.(no document attached) (atk) (Entered: 10/31/2018)
136 NOTICE of Teleconference Information Sheet. Teleconference set for 11/19/2018 at 9:30AM. (The teleconference information sheet can be accessed through ECF using the login information assigned to an attorney of record in the case and then selecting the report option. On the next screen, the docket sheet option should be selected, prompting the user for a PACER login (assigned to the attorney of record). Once the PACER login is completed, the case number can be entered which will

11/05/2018
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display the docket sheet for the case and allow the user to open the teleconference information sheet.)(atk) (Entered: 10/31/2018)
137 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Motion Hearing held on 11/5/2018 Submitting, 122 MOTION to Certify Class Renewed Motion Or, In The Alternative, Extension of Time filed by Frank Tiscareno, Juan Romero, Kenneth Elliott, 101 MOTION for Partial Summary Judgment filed by Frank Tiscareno, Juan Romero, Kenneth Elliott, Motions Submitted 122 MOTION to Certify Class(Renewed Motion) Or, In The Alternative, Extension of Time, 101 MOTION for Partial Summary Judgment. Oral arguments held. Written order to follow. (Court Reporter/ECR Ellen Simone). (Plaintiff Attorney Eileen Ridley). (Defendant Attorney Marisol Mork). (no document attached) (gac) (Entered: 11/05/2018)
138 NOTICE of Appearance by Kas L. Gallucci on behalf of Kenneth Elliott, Juan Romero, Frank Tiscareno (Attachments: # 1 Proof of Service)(Gallucci, Kas)Attorney Kas L. Gallucci added to party Kenneth Elliott(pty:pla), Attorney Kas L. Gallucci added to party Juan Romero(pty:pla), Attorney Kas L. Gallucci added to party Frank Tiscareno(pty:pla) (sjm). (Entered: 11/06/2018)
139 ORDER: On the Court's own motion the telephonic Case Management Conference scheduled for November 19, 2018 is CONTINUED to December 17, 2018 at 1:45PM before Magistrate Judge Mitchell D. Dembin. Only counsel are required to participate. An updated telephonic information sheet will be filed. Signed by Magistrate Judge Mitchell D. Dembin on 11/14/2018.(no document attached) (atk) (Entered: 11/14/2018)
140 NOTICE of Teleconference Information Sheet. Teleconference set for 12/17/2018 at 1:45PM. (atk) (Entered: 11/14/2018)
141 ORDER DENYING 101 MOTION FOR PARTIAL SUMMARY JUDGMENT and GRANTING IN PART 122 MOTION FOR CLASS CERTIFICATION. Signed by Judge Jeffrey T. Miller on 11/21/2018. (sjm) (Entered: 11/21/2018)
142 ORDER: A telephonic Case Management Conference is scheduled for December 17, 2018. (See ECF No. 139). On or before December 13, 2018, the parties are instructed to submit a new Joint Discovery Plan to be discussed during the CMC. Signed by Magistrate Judge Mitchell D. Dembin on 12/02/2018.(no document attached) (atk) (Entered: 12/02/2018)
143 MOTION for Certificate of Appealability Regarding Court's Order Denying Plaintiffs' Motion For Partial Summary Judgment by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Memo of Points and Authorities)(Fox, Nicholas) Q.C. mailer re: Incorrect event.

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Entry has been modified to reflect Motion to Certify as the correct event (sjm). (Entered: 12/03/2018)
144 USCA Case Number 18-80180 for Petition for Permission to Appeal under 23(f) filed by Kenneth Elliott, Juan Romero, Frank Tiscareno. (akr) (Entered: 12/06/2018)
145 USCA Case Number 18-80181 for Petition for Permission to Appeal under 23(f) filed by Securus Technologies, Inc. (akr) (Entered: 12/06/2018)
146 ORDER: The telephonic Case Management Conference currently scheduled for December 17, 2018, is VACATED. [See ECF No. 142]. Once the issue of interlocutory appeal is resolved [ECF No. 143] the parties are instructed to contact the Court within three days to reschedule the CMC. Signed by Magistrate Judge Mitchell D. Dembin on 12/14/2018.(no document attached) (atk) (Entered: 12/14/2018)
147 RESPONSE in Opposition re 143 MOTION to Certify Interlocutory Appeal of Ruling Denying Plaintiffs' Motion for Partial Summary Judgment [D.E. 143-1] filed by Securus Technologies, Inc.. (Attachments: # 1 Appendix of Electronic Authorities Cited in the Opposition of Defendant Securus Technologies, Inc.)(Fox, Adam) (sjm). (Entered: 01/08/2019)
148 REPLY to Response to Motion re 143 MOTION to Certify Plaintiffs' Reply to Def. Securus Technologies, Inc.'s Opposition to Motion to Certify Interlocutory Appeal of Ruling Denying Plaintiffs' Motion for Partial Summary Judgment filed by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Fox, Nicholas) (sjm). (Entered: 01/15/2019)
149 ORDER DENYING PLAINTIFFS MOTION TO CERTIFY INTERLOCUTORY APPEAL regarding 143 Motion to Certify. Signed by Judge Jeffrey T. Miller on 1/16/2018. (sjm) (Entered: 01/16/2019)
150 Joint MOTION To Set Case Management Conference by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Fox, Nicholas) (sjm). (Entered: 01/23/2019)
151 ORDER granting 150 Joint Motion for Case Management Conference. A telephonic Case Management Conference will be held February 22, 2019 at 9:15AM before Magistrate Judge Mitchell D. Dembin. Only counsel are required to participate. Counsel are ordered to use the dial-in information filed as a separate notice to access the Court's teleconference service. (The teleconference information sheet can be accessed through ECF using the login information assigned to an attorney of record in the case and then selecting the report option. On the next screen, the docket sheet option should be selected, prompting the user for a PACER login (assigned to the attorney of record). Once the PACER login is completed,

02/03/2019 02/22/2019
02/25/2019
02/26/2019 02/27/2019
02/28/2019 02/28/2019

the case number can be entered which will display the docket sheet for the case and allow the user to open the teleconference information sheet.). Signed by Magistrate Judge Mitchell D. Dembin on 02/03/2019. (no document attached) (atk) (Entered: 02/03/2019)
152 NOTICE of Teleconference Information Sheet. Teleconference set for 02/22/2019 at 9:15AM. (atk) (Entered: 02/03/2019)
153 Minute Entry for proceedings held before Magistrate Judge Mitchell D. Dembin: A telephonic Case Management Conference was held on 2/22/2019. An amended scheduling order will follow. (Plaintiff Attorneys: Ron Marron, Robert Teel, Nicholas Fox). (Defendant Attorneys: Adam Fox, Marisol Mork). (no document attached) (atk) (Entered: 02/22/2019)
154 SCHEDULING ORDER REGULATING DISCOVERY AND OTHER PRE-TRIAL PROCEEDINGS: Mandatory Settlement Conference set for 9/11/2019 09:30 AM before Magistrate Judge Mitchell D. Dembin. Proposed Pretrial Order due by 1/24/2020. Final Pretrial Conference set for 1/31/2020 08:30 AM before Judge Jeffrey T. Miller. Trial set for 3/2/2020 10:00 AM before Judge Jeffrey T. Miller. Signed by Magistrate Judge Mitchell D. Dembin on 2/25/2019.(sjm) (Entered: 02/25/2019)
155 ORDER of USCA as to Petition for Permission to Appeal under 23(f) filed by Kenneth Elliott, Juan Romero, Frank Tiscareno. The USCA, in its discretion, denies the petition for permission to appeal the USDC's November 21, 2018 order granting class action certification in part. (akr) (Entered: 02/26/2019)
156 ORDER of USCA as to Petition for Permission to Appeal under 23(f) filed by Securus Technologies, Inc. The USCA, in its discretion, grants the petition for permission to appeal the USDC's November 21, 2018 order granting class action certification in part. Within 14 days after the date of this order, petitioner shall perfect the appeal in accordance with Federal Rule of Appellate Procedure 5(d). (akr) (Entered: 02/27/2019)
157 USCA Case Number 19-55243 for Notice of Appeal filed by Securus Technologies, Inc. (akr) (Entered: 02/28/2019)
158 USCA Time Schedule Order as to Notice of Appeal filed by Securus Technologies, Inc. (NOTICE TO PARTIES of deadlines regarding appellate transcripts: Appellant shall file transcript designation and ordering form with the US District Court (see attached), provide a copy of the form to the court reporter, and make payment arrangements with the court reporter on or by 3/29/2019 (see Ninth Circuit Rule 10-3.1); Due date for filing of transcripts in US District Court is 4/29/2019.) (Attachments: # 1 Transcript Designation and Ordering Form). (akr) (Entered: 02/28/2019)

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159 Fee for Appeal to 9th Circuit Court of Appeals for the Notice of Appeal filed by Securus Technologies, Inc.: $ 505, receipt number 097412275057, Paid on 3/7/2019. (no document attached) (Fox, Adam). (Modified on 3/7/2019: USCA Case Number 19-55243. Notice electronically transmitted to the US Court of Appeals via regenerated NEF. Edited docket text to add reference to the Notice of Appeal.) (akr). (Entered: 03/07/2019)
160 MOTION to Stay Case Pending Resolution of Rule 23(f) Appeal by Securus Technologies, Inc.. (Attachments: # 1 Memo of Points and Authorities, # 2 Exhibit A, # 3 Exhibit B, # 4 Declaration of Adam R. Fox, # 5 Proposed Order)(Fox, Adam) (sjm). (Entered: 03/08/2019)
161 Joint MOTION for Determination of Discovery Dispute by Securus Technologies, Inc.. (Fox, Adam). Modified on 3/25/2019 - Edited text (jah). (Entered: 03/22/2019)
162 DECLARATION of Compliance with Chambers Rule IV Requirements by Defendant Securus Technologies, Inc.. (Fox, Adam). (jah). (Entered: 03/22/2019)
163 RESPONSE in Opposition re 160 MOTION to Stay Case Pending Resolution of Rule 23(f) Appeal Plaintiffs' Opposition to Def. Securus Technologies, Inc.'s Motion to Stay Case Pending Resolution of Rule 23(f) Appeal filed by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Decl. of Robert Teel ISO Plaintiffs' Opposition to Motion to Stay Case, # 2 Index of Exhibits to Teel Decl., # 3 Exhibit A to Teel Decl., # 4 Exhibit B to Teel Decl., # 5 Exhibit C to Teel Decl., # 6 Exhibit D to Teel Decl., # 7 Exhibit E to Teel Decl., # 8 Exhibit F to Teel Decl., # 9 Exhibit G to Teel Decl., # 10 Exhibit H to Teel Decl., # 11 Exhibit I to Teel Decl., # 12 Certificate of Service of Teel Decl)(Fox, Nicholas) (sjm). (Entered: 03/25/2019)
164 ORDER on 161 Joint Motion for Determination of Discovery Dispute. The issue before the Court is whether Defendant must respond to outstanding discovery while Defendant's Motion to Stay Proceedings 160 is pending before the district judge. The Court will not usurp the district judge's prerogative in this matter. If the district judge denies the motion to stay proceedings, Defendants must respond to the outstanding discovery requests within 14 days. Any dispute regarding that production may be brought to the Court by joint motion as provided in the Court's Civil Chambers Rules. Signed by Magistrate Judge Mitchell D. Dembin on 3/26/19. (no document attached) (Dembin, Mitchell) (Entered: 03/26/2019)
165 REPLY to Response to Motion re 160 MOTION to Stay Case Pending Resolution of Rule 23(f) Appeal filed by Securus Technologies, Inc.. (Fox, Adam) (sjm). (Entered: 04/01/2019)

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166 Minute Order for proceedings held before Judge Jeffrey T. Miller: Motion Hearing held on 4/8/2019, submitting 160 MOTION to Stay Case Pending Resolution of Rule 23(f) Appeal filed by Securus Technologies, Inc. Written order to follow. (Court Reporter/ECR Lee Ann Pence). (Plaintiff Attorney Nicholas Fox).(Defendant Attorney Marisol Monk). (no document attached) (gac) (Entered: 04/08/2019)
167 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 11/5/2018 before Judge Jeffrey T. Miller. Court Reporter/Transcriber: Ellen L. Simone. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E-File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 5/6/2019. Redacted Transcript Deadline set for 5/16/2019. Release of Transcript Restriction set for 7/15/2019. (akr) (Entered: 04/15/2019)
168 ORDER granting 160 Motion to Stay. Case stayed until the filing of an application to lift the stay partially or in its entirety if future circumstances warrant. Signed by Judge Jeffrey T. Miller on 4/17/2019. (sjm) (Entered: 04/17/2019)
169 ORDER: The Mandatory Settlement Conference currently scheduled for September 11, 2019 is vacated due to the stay issued by the district court on April 17, 2019, while an appeal is pending in the Ninth Circuit. 168 . Signed by Magistrate Judge Mitchell D. Dembin on 08/16/2019.(no document attached) (atk) (Entered: 08/16/2019)
170 NOTICE of Withdrawal of Counsel for Plaintiffs (J. Mark Waxman) by Kenneth Elliott, Juan Romero, Frank Tiscareno (Waxman, J.) (sjt). (Entered: 01/29/2020)
171 NOTICE of Change of Address by Nicholas John Fox (Fox, Nicholas) (sjt). (Entered: 03/11/2020)
172 ORDER of USCA as to the Notice of Appeal filed by Securus Technologies, Inc. The parties' stipulation to dismiss the appeal without prejudice, construed as a stipulation to dismiss without prejudice to reinstatement, is granted. Pursuant to the terms of the parties' stipulation, the appeal is dismissed without prejudice to reinstatement for approval of the settlement by the District Court. Reinstatement shall be by notice filed by any party in the USCA and served on the other parties and the Circuit Mediator within 28 days of the District Court's order denying approval of settlement. If no notice of reinstatement is filed and served, the appeal will be deemed dismissed with prejudice. A copy of this order

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shall serve as and for the mandate of the USCA. (akr) (Entered: 03/12/2020)
173 NOTICE of Settlement and Request to Vacate Existing Deadlines and Set New Deadline for Filing Motion for Preliminary Approval by Kenneth Elliott, Juan Romero, Frank Tiscareno (Teel, Robert) (sjt). (Entered: 04/21/2020)
174 ORDER Spreading the Mandate and Setting Deadline for Filing Motion for Preliminary Approval of Proposed Settlement. Signed by Judge Jeffrey T. Miller on 4/21/2020.(sjt) (Entered: 04/21/2020)
175 MOTION Preliminary Approval of Class Action Settlement by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Memo of Points and Authorities in Support of Motion for Preliminary Approval of Class Action Settlement, # 2 Declaration of Robert Teel in Support of Motion for Preliminary Approval of Class Action Settlement, # 3 Exhibit 1 to Declaration of Robert Teel in Support of Motion for Preliminary Approval of Class Action Settlement)(Teel, Robert) (QC mailer sent re: document not timely) (sjt). (Entered: 05/18/2020)
176 Notice of Change of Motion Hearing: The hearing on the Motion for Preliminary Approval of Class Action Settlement (Doc. No. 175 ) currently set for 6/5/2020 08:30 AM before Judge Jeffrey T. Miller is RESCHEDULED to 11:30 AM on the same date and will be conducted TELEPHONICALLY. Counsel will be contacted with dial-in information prior to the telephonic hearing time. (no document attached) (gac) (Entered: 05/29/2020)
177 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Telephonic Motion Hearing held on 6/5/2020, granting 175 MOTION Preliminary Approval of Class Action Settlement filed by Frank Tiscareno, Juan Romero, Kenneth Elliott. Plaintiffs to potentially submit a amended order. Written order to follow. (Court Reporter/ECR James Pence). (Plaintiff Attorney Robert L. Teel; Michael Houchin; Ronald Marron; Eileen Ridley). (Defendant Attorney Marisol Mork). (no document attached) (gac) (Entered: 06/05/2020)
178 ORDER granting 175 Motion Preliminary Approval of Class Action Settlement. Final Approval Hearing set for 9/28/2020 10:00 AM in Courtroom 5D before Judge Jeffrey T. Miller. Signed by Judge Jeffrey T. Miller on 6/16/2020. (sjt) (Entered: 06/16/2020)
179 MOTION for Settlement Plaintiffs' Motion for Final Approval of Class Action Settlement by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Robert Teel, # 3 Exhibit 1, # 4 Declaration of Madely Nava)(Marron, Ronald) (sjt). (Entered: 07/31/2020)

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180 NOTICE of Withdrawal of Counsel Nicholas J. Fox for Plaintiffs Juan Romero, Frank Tiscareno, and Kenneth Elliot by Kenneth Elliott, Juan Romero, Frank Tiscareno (Fox, Nicholas) (sjt). (Entered: 08/05/2020)
181 MOTION for Attorney Fees , Costs, and Incentive Awards by Kenneth Elliott, Juan Romero, Frank Tiscareno. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Ronald A. Marron, # 3 Exhibit A to Marron Declaration, # 4 Exhibit B to Marron Declaration, # 5 Exhibit C to Marron Declaration, # 6 Declaration of Eileen Ridley, # 7 Declaration of Robert Teel, # 8 Exhibit 1 to Teel Declaration, # 9 Declaration of Juan Romero, # 10 Declaration of Kenneth Elliott, # 11 Declaration of Frank Tiscareno, # 12 Exhibit 1 to Tiscareno Declaration, # 13 Exhibit 2 to Tiscareno Declaration)(Marron, Ronald) (sjt). (Entered: 08/17/2020)
182 ORDER Resetting Hearings on Motions for Final Approval of Class Action Settlement and for Attorneys Fees. Signed by Judge Jeffrey T. Miller on 9/11/2020.(sjt) (Entered: 09/11/2020)
183 Minute Entry for proceedings held before Judge Jeffrey T. Miller: Telephonic Motion Hearing held on 11/9/2020 re 179 MOTION for Settlement Plaintiffs' Motion for Final Approval of Class Action Settlement, 181 MOTION for Attorney Fees, Costs, and Incentive Awards. Court takes motions under submission. Written order to follow. (Court Reporter/ECR Frank Rangus). (Plaintiff Attorney Eileen Ridley; Robert Teel; Michael Houchin). (Defendant Attorney Marisol Mork). (no document attached) (gac) (Entered: 11/09/2020)
184 ORDER on 179 Motion for Final Approval of Class Action Settlement and Order on 181 Motion for Costs, Incentive Awards, and Attorney Fees. Signed by Judge Jeffrey T. Miller on 11/19/2020. (sjt) (Entered: 11/19/2020)
185 CLERK'S JUDGMENT. (sjt) (Entered: 11/19/2020)

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