CLOSED,RULE16,SCHEDO
U.S. District Court District of New Jersey [LIVE] (Newark) CIVIL DOCKET FOR CASE #: 2:13-cv-04989-WJM-MF

JAMES et al v. GLOBAL TEL*LINK CORPORATION et al Assigned to: Judge William J. Martini Referred to: Magistrate Judge Mark Falk Case in other court: Third Circuit, 16-01555 Cause: 28:1331 Fed Question: Fed Communications Act of 1

Date Filed: 08/20/2013 Date Terminated: 10/22/2020 Jury Demand: Plaintiff Nature of Suit: 370 Other Fraud Jurisdiction: Federal Question

Plaintiff
BOBBIE JAMES on behalf of themselves and all others similarly situated

represented by JAMES E. CECCHI CARELLA BYRNE CECCHI OLSTEIN BRODY & AGNELLO, P.C. 5 BECKER FARM ROAD ROSELAND, NJ 07068 (973) 994-1700 Fax: (973) 994-1744 Email: jcecchi@carellabyrne.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

JAMES ATKINSON PLAISTED PASHMAN STEIN WALDER HAYDEN 21 MAIN STREET SUITE 200 COURT PLAZA SOUTH HACKENSACK, NJ 07601 201-488-8200 Fax: 201-488-5556 Email: jplaisted@pashmanstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

MATTHEW EDWARD FRISCH PASHMAN STEIN WALDER HAYDEN 21 MAIN STREET

SUITE 200 HACKENSACK, NJ 07601 201-488-8200 Email: mfrisch@pashmanstein.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAN ALAN BRODY CARELLA, BYRNE, BAIN, GILFILLAN, CECCHI, STEWART & OLSTEN 5 BECKER FARM ROAD ROSELAND, NJ 07068-1739 (973) 994-1700 Email: jbrody@carellabyrne.com ATTORNEY TO BE NOTICED
JOSEPH H. MELTZER KESSLER TOPAZ MELTZER & CHECK, LLP 280 KING OF PRUSSIA ROAD RADNOR, PA 19087 (610) 667-7706 Fax: (610) 667-7056 Email: jmeltzer@ktmc.com ATTORNEY TO BE NOTICED
JUSTIN P. WALDER PASHMAN STEIN WALDER HAYDEN 21 MAIN STREET SUITE 200 COURT PLAZA SOUTH HACKENSACK, NJ 07601 201-488-8200 Fax: 201-488-5556 Email: jpwalder@pashmanstein.com ATTORNEY TO BE NOTICED
LIN CLAIRE SOLOMON PASHMAN STEIN WALDER HAYDEN 21 MAIN STREET SUITE 200 COURT PLAZA SOUTH HACKENSACK, NJ 07601

Plaintiff
CRYSTAL GIBSON on behalf of themselves and all others similarly situated

201-488-8200 Fax: 201-488-5556 Email: lsolomon@pashmanstein.com ATTORNEY TO BE NOTICED
LINDSEY H. TAYLOR CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO 5 BECKER FARM ROAD ROSELAND, NJ 07021 973 994-1700 Email: ltaylor@carellabyrne.com ATTORNEY TO BE NOTICED
PETER A. MUHIC LEVAN MUHIC STAPLETON LLC FOUR GREENTREE CENTRE 601 RT 73 N SUITE 303 Marlton, NJ 08053 856-272-3602 Email: pmuhic@levanmuhic.com ATTORNEY TO BE NOTICED
represented by JAMES E. CECCHI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAMES ATKINSON PLAISTED (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW EDWARD FRISCH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAN ALAN BRODY (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
BETTY KING on behalf of themselves and all others similarly situated

JOSEPH H. MELTZER (See above for address) ATTORNEY TO BE NOTICED
JUSTIN P. WALDER (See above for address) ATTORNEY TO BE NOTICED
LIN CLAIRE SOLOMON (See above for address) ATTORNEY TO BE NOTICED
LINDSEY H. TAYLOR (See above for address) ATTORNEY TO BE NOTICED
PETER A. MUHIC (See above for address) ATTORNEY TO BE NOTICED
represented by JAMES E. CECCHI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAMES ATKINSON PLAISTED (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW EDWARD FRISCH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAN ALAN BRODY (See above for address) ATTORNEY TO BE NOTICED
JOSEPH H. MELTZER (See above for address) ATTORNEY TO BE NOTICED
JUSTIN P. WALDER (See above for address)

Plaintiff
BARBARA SKLADANY on behalf of themselves and all others similarly situated

ATTORNEY TO BE NOTICED
LIN CLAIRE SOLOMON (See above for address) ATTORNEY TO BE NOTICED
LINDSEY H. TAYLOR (See above for address) ATTORNEY TO BE NOTICED
PETER A. MUHIC (See above for address) ATTORNEY TO BE NOTICED
represented by JAMES E. CECCHI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAMES ATKINSON PLAISTED (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW EDWARD FRISCH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAN ALAN BRODY (See above for address) ATTORNEY TO BE NOTICED
JOSEPH H. MELTZER (See above for address) ATTORNEY TO BE NOTICED
JUSTIN P. WALDER (See above for address) ATTORNEY TO BE NOTICED
LIN CLAIRE SOLOMON (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
MARK SKLADANY on behalf of themselves and all others similarly situated

LINDSEY H. TAYLOR (See above for address) ATTORNEY TO BE NOTICED
PETER A. MUHIC (See above for address) ATTORNEY TO BE NOTICED
represented by JAMES E. CECCHI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAMES ATKINSON PLAISTED (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW EDWARD FRISCH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAN ALAN BRODY (See above for address) ATTORNEY TO BE NOTICED
JOSEPH H. MELTZER (See above for address) ATTORNEY TO BE NOTICED
JUSTIN P. WALDER (See above for address) ATTORNEY TO BE NOTICED
LIN CLAIRE SOLOMON (See above for address) ATTORNEY TO BE NOTICED
LINDSEY H. TAYLOR (See above for address) ATTORNEY TO BE NOTICED
PETER A. MUHIC

Plaintiff MILAN SKLADANY on behalf of themselves and all others similarly situated
Plaintiff

(See above for address) ATTORNEY TO BE NOTICED
represented by JAMES E. CECCHI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAMES ATKINSON PLAISTED (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW EDWARD FRISCH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAN ALAN BRODY (See above for address) ATTORNEY TO BE NOTICED
JOSEPH H. MELTZER (See above for address) ATTORNEY TO BE NOTICED
JUSTIN P. WALDER (See above for address) ATTORNEY TO BE NOTICED
LIN CLAIRE SOLOMON (See above for address) ATTORNEY TO BE NOTICED
LINDSEY H. TAYLOR (See above for address) ATTORNEY TO BE NOTICED
PETER A. MUHIC (See above for address) ATTORNEY TO BE NOTICED

DR. JOHN F. CROW on behalf of themselves and all others similarly situated
V. Defendant GLOBAL TEL*LINK CORPORATION

represented by JAMES E. CECCHI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAMES ATKINSON PLAISTED (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MATTHEW EDWARD FRISCH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JAN ALAN BRODY (See above for address) ATTORNEY TO BE NOTICED
JOSEPH H. MELTZER (See above for address) ATTORNEY TO BE NOTICED
JUSTIN P. WALDER (See above for address) ATTORNEY TO BE NOTICED
LIN CLAIRE SOLOMON (See above for address) ATTORNEY TO BE NOTICED
LINDSEY H. TAYLOR (See above for address) ATTORNEY TO BE NOTICED
PETER A. MUHIC (See above for address) ATTORNEY TO BE NOTICED
represented by AARON VAN NOSTRAND GREENBERG TRAURIG LLP 500 CAMPUS DRIVE

Defendant
INMATE TELEPHONE SERVICE

SUITE 400 P.O. BOX 677 FLORHAM PARK, NJ 07932-0677 973.443.3557 Fax: 973.295.1321 Email: vannostranda@gtlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
ERIC S. ARONSON STROOK & STROOK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038 212-806-6627 Email: earonson@stroock.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL A. NICODEMA GREENBERG TRURIG LLP 500 Campus Drive Suite 400 P.O. BOX 677 FLORHAM PARK, NJ 07932-0677 973-360-7900 Email: nicodemam@gtlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
PHILIP R. SELLINGER GREENBERG TRAURIG, LLP 500 Campus Drive Suite 400 PO BOX 677 FLORHAM PARK, NJ 07932-0677 (973) 360-7900 Email: sellingerp@gtlaw.com TERMINATED: 07/28/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant DSI-ITI LLC
Intervenor Benson Githieya
Intervenor Darlene Byers Intervenor Nellie Lockett

represented by AARON VAN NOSTRAND (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ERIC S. ARONSON (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL A. NICODEMA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
PHILIP R. SELLINGER (See above for address) TERMINATED: 07/28/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ERNESTO CERIMELE Klingeman Cerimele, Attorneys 60 Park Place Suite 1100 Newark, NJ 07102 973-792-8822 Fax: 973-792-8768 Email: ernesto@klingemanlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ERNESTO CERIMELE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ERNESTO CERIMELE (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/20/2013
08/26/2013
08/28/2013 08/28/2013 08/28/2013 08/29/2013
09/03/2013 09/10/2013

# Docket Text
1 COMPLAINT against DSI-ITI LLC, GLOBAL TELLINK CORPORATION, INMATE TELEPHONE SERVICE ( Filing and Admin fee $ 400 receipt number 5182956) with JURY DEMAND, filed by MILAN SKLADANY, CRYSTAL GIBSON, BARBARA SKLADANY, MARK SKLADANY, BOBBIE JAMES, JOHN F. CROW, BETTY KING. (Attachments: # 1 Civil Cover Sheet)(jjc) (Entered: 08/26/2013)
2 SUMMONS ISSUED as to DSI-ITI LLC, GLOBAL TELLINK CORPORATION, INMATE TELEPHONE SERVICE Attached is the official court Summons, please fill out Defendant and Plaintiffs attorney information and serve. Issued By *JAWEIA CAMPBELL* (jjc) (Entered: 08/26/2013)
3 NOTICE of Appearance by LINDSEY H. TAYLOR on behalf of All Plaintiffs (TAYLOR, LINDSEY) (Entered: 08/28/2013)
4 NOTICE of Appearance by JAMES ATKINSON PLAISTED on behalf of All Plaintiffs (PLAISTED, JAMES) (Entered: 08/28/2013)
5 NOTICE of Appearance by LIN CLAIRE SOLOMON on behalf of All Plaintiffs (SOLOMON, LIN) (Entered: 08/28/2013)
CLERK'S QUALITY CONTROL MESSAGE - J. Plaisted has restricted access to the Notice of Appearance (doc #4) filed on 8/28/13 without an order or clarification as to why access was restricted. Please submit a certification stating that this document is to be marked Confidential Material or that this document's access was restricted in error. Please be advised, pursuant to Local Civil Rule 5.3, you must file a motion for leave to have a document sealed. (jd, ) (Entered: 08/29/2013)
6 Letter. (PLAISTED, JAMES) (Entered: 09/03/2013)
7 SUMMONS Returned Executed by MILAN SKLADANY, CRYSTAL GIBSON, BARBARA SKLADANY, MARK SKLADANY, BOBBIE JAMES, JOHN F. CROW, BETTY KING. DSI-ITI LLC served on 8/29/2013, answer due 9/19/2013. (TAYLOR, LINDSEY) (Entered: 09/10/2013)

09/18/2013 09/18/2013 09/18/2013 09/18/2013
09/19/2013 09/19/2013 10/07/2013
10/16/2013 10/17/2013 11/01/2013 11/04/2013

8 Proposed Pretrial Order on Consent re extension of time to answer or otherwise respond to Complaint by DSI-ITI LLC, GLOBAL TELLINK CORPORATION. (VAN NOSTRAND, AARON) (Entered: 09/18/2013)
9 NOTICE of Appearance by PHILIP R. SELLINGER on behalf of DSIITI LLC, GLOBAL TELLINK CORPORATION (SELLINGER, PHILIP) (Entered: 09/18/2013)
10 NOTICE of Appearance by AARON VAN NOSTRAND on behalf of DSI-ITI LLC, GLOBAL TELLINK CORPORATION (VAN NOSTRAND, AARON) (Entered: 09/18/2013)
CLERK'S QUALITY CONTROL MESSAGE - The Consent Order submitted by A. VAN NOSTRAND on 9/18/2013 must be executed by a Judicial Officer before filing. Please forward to the appropriate Judicial Officer in accordance with his/her preferred practice as found on our website. This submission will remain on the docket unless otherwise ordered by the court. This message is for informational purposes only. (nr, ) (Entered: 09/18/2013)
11 Letter from Aaron Van Nostrand. (Attachments: # 1 Text of Proposed Order)(VAN NOSTRAND, AARON) (Entered: 09/19/2013)
12 CONSENT ORDER extending deft's time to file an answer to 10/21/2013. Signed by Magistrate Judge Mark Falk on 9/19/2013. (nr, ) (Entered: 09/19/2013)
13 SUMMONS Returned Executed by MILAN SKLADANY, BARBARA SKLADANY, MARK SKLADANY, DSI-ITI LLC, BOBBIE JAMES, JOHN F. CROW, BETTY KING. INMATE TELEPHONE SERVICE served on 9/11/2013, answer due 10/2/2013. (TAYLOR, LINDSEY) (Entered: 10/07/2013)
14 Letter from Aaron Van Nostrand re 12 Order. (Attachments: # 1 Text of Proposed Order)(VAN NOSTRAND, AARON) (Entered: 10/16/2013)
15 CONSENT ORDER extending def's time to file an answer to 11/4/2013. Signed by Magistrate Judge Mark Falk on 10/17/2013. (nr, ) (Entered: 10/17/2013)
16 Letter from Aaron Van Nostrand re 15 Order. (Attachments: # 1 Text of Proposed Order)(VAN NOSTRAND, AARON) (Entered: 11/01/2013)
17 CONSENT ORDER granting GTL's and DSI-ITI's time to file an answer to the complt. to 11/18/2013. Signed by Magistrate Judge Mark Falk on 11/4/2013. (nr, ) (Entered: 11/04/2013)

11/18/2013 11/19/2013 11/22/2013 11/22/2013 11/26/2013 12/02/2013
12/20/2013 12/23/2013
12/23/2013
01/10/2014

18 Letter from Aaron Van Nostrand re 1 Complaint,. (Attachments: # 1 Text of Proposed Order on Consent)(VAN NOSTRAND, AARON) (Entered: 11/18/2013)
19 CONSENT ORDER extending deft's time to file an answer to the complt. to 11/22/2013. Signed by Magistrate Judge Mark Falk on 11/19/2013. (nr, ) (Entered: 11/19/2013)
20 MOTION to Dismiss by DSI-ITI LLC, GLOBAL TELLINK CORPORATION. (Attachments: # 1 Brief, # 2 Text of Proposed Order)(SELLINGER, PHILIP) (Entered: 11/22/2013)
Set Deadlines as to 20 MOTION to Dismiss . Motion set for 12/16/2013 before Judge William J. Martini. The motion will be decided on the papers. No appearances required unless notified by the court. (nr, ) (Entered: 11/25/2013)
21 Letter from Co-Counsel for Plaintiffs. (SOLOMON, LIN) (Entered: 11/26/2013)
Set Deadlines as to 20 MOTION to Dismiss . Responses due by 12/23/2013 Replies due by 12/30/2013. Motion set for 1/6/2014 before Judge William J. Martini. The motion will be decided on the papers. No appearances required unless notified by the court. (gh, ) (Entered: 12/02/2013)
22 Letter from Aaron Van Nostrand. (VAN NOSTRAND, AARON) (Entered: 12/20/2013)
Set Deadlines as to 20 MOTION to Dismiss . Responses due by 12/23/2013 Replies due by 1/10/2014. Motion set for 1/21/2014 before Judge William J. Martini. The motion will be decided on the papers. No appearances required unless notified by the court. (gh, ) (Entered: 12/23/2013)
23 BRIEF in Opposition filed by JOHN F. CROW, CRYSTAL GIBSON, BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY, MILAN SKLADANY re 20 MOTION to Dismiss (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Declaration of Lindsey H. Taylor, # 5 Exhibit A, # 6 Exhibit B, # 7 Exhibit C, # 8 Exhibit D)(CECCHI, JAMES) (Entered: 12/23/2013)
24 REPLY to Response to Motion filed by DSI-ITI LLC, GLOBAL TELLINK CORPORATION re 20 MOTION to Dismiss (Attachments: # 1 Certificate of Service)(SELLINGER, PHILIP) (Entered: 01/10/2014)

01/15/2014
01/16/2014 01/23/2014 03/21/2014 03/25/2014 06/11/2014 06/17/2014 08/07/2014 08/13/2014
08/18/2014 08/26/2014 09/05/2014

25 Letter from Lindsey H. Taylor Regarding Appeal of FCC Regulations re 24 Reply to Response to Motion, 23 Brief in Opposition to Motion, 20 MOTION to Dismiss . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(TAYLOR, LINDSEY) (Entered: 01/15/2014)
26 Letter from Aaron Van Nostrand re 25 Letter,. (VAN NOSTRAND, AARON) (Entered: 01/16/2014)
27 Letter from Lindsey H. Taylor Regarding D.C. Circuit Appeal re 25 Letter, 26 Letter. (TAYLOR, LINDSEY) (Entered: 01/23/2014)
28 Letter from James E. Cecchi Requesting Rule 16 Conference. (CECCHI, JAMES) (Entered: 03/21/2014)
29 Letter from Aaron Van Nostrand re 28 Letter. (VAN NOSTRAND, AARON) (Entered: 03/25/2014)
NOTICE of Hearing on Motion 20 MOTION to Dismiss : Motion set for 7/10/2014 10:00 AM before Judge William J. Martini. (gh, ) (Entered: 06/11/2014)
NOTICE of Hearing on Motion 20 MOTION to Dismiss : Motion set for 7/16/2014 1:00PM before Judge William J. Martini. (gh, ) (Entered: 06/17/2014)
30 Letter from Aaron Van Nostrand re 20 MOTION to Dismiss . (VAN NOSTRAND, AARON) (Entered: 08/07/2014)
31 Minute Entry for proceedings held before Judge William J. Martini: Motions Taken Under Advisement: 20 Motion Hearing held on 8/13/2014 (Court Reporter/Recorder Walter Perelli.) (gh, ) (Entered: 08/13/2014)
32 Letter from Plaintiffs. (PLAISTED, JAMES) (Entered: 08/18/2014)
33 Letter from Philip R. Sellinger. (SELLINGER, PHILIP) (Entered: 08/26/2014)
34 Transcript of Proceedings held on August 13, 2014, before Judge WILLIAM J. MARTINI. Court Reporter/Transcriber Walter Perelli (973-645-2514). MOTION. NOTICE REGARDING REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this Transcript. Redaction Request due 9/26/2014. Redacted Transcript Deadline set for 10/6/2014. Release of Transcript Restriction set for 12/4/2014. (ek) Modified on 9/5/2014 (mfr). (Entered: 09/05/2014)

09/08/2014 09/08/2014 09/08/2014 09/19/2014 09/26/2014 10/01/2014 10/20/2014
10/21/2014
11/03/2014 11/06/2014 11/12/2014 11/14/2014 11/26/2014

35 OPINION. Signed by Judge William J. Martini on 9/8/14. (gh, ) (Entered: 09/08/2014)
36 ORDER denying 20 Motion to Dismiss and staying action. Signed by Judge William J. Martini on 9/8/14. (gh, ) (Entered: 09/08/2014)
37 ORDER granting Plaintiff leave to file a motion for specific limited discovery, etc. Signed by Judge William J. Martini on 9/8/14. (gh, ) (Entered: 09/08/2014)
38 Letter from James E. Cecchi Enclosing Proposed Order Withdrawing FCA Claims re 36 Order on Motion to Dismiss. (Attachments: # 1 Text of Proposed Order)(CECCHI, JAMES) (Entered: 09/19/2014)
39 Letter from Philip R. Sellinger re 38 Letter. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(SELLINGER, PHILIP) (Entered: 09/26/2014)
40 Letter from Plaintiffs. (PLAISTED, JAMES) (Entered: 10/01/2014)
41 ORDER: Ordered that the Third and Fifth Count of Plaintiff's Complaint is withdrawn with prejudice; vacating the stay that was imposed on 9/8/14. Signed by Judge William J. Martini on 10/20/14. (gh, ) (Entered: 10/20/2014)
42 LETTER ORDER - In-Person Scheduling Conference set for 11/14/2014 at 11:30 AM in Newark - Courtroom 9 before Magistrate Judge Mark Falk. Signed by Magistrate Judge Mark Falk on 10/21/14. (LM, ) (Entered: 10/21/2014)
43 Letter from Aaron Van Nostrand. (Attachments: # 1 Proposed Consent Order)(VAN NOSTRAND, AARON) (Entered: 11/03/2014)
44 CONSENT ORDER extending deft's time to file an answer to 11/26/2014. Signed by Magistrate Judge Mark Falk on 11/5/2014. (nr, ) (Entered: 11/07/2014)
45 Letter from Lindsey H. Taylor Enclosing Joint Discovery Plan re 42 Order, Set Hearings, Set/Clear Flags. (Attachments: # 1 Joint Discovery Plan)(TAYLOR, LINDSEY) (Entered: 11/12/2014)
Minute Entry for proceedings held before Magistrate Judge Mark Falk: Scheduling Conference held on 11/14/2014. (LM, ) (Entered: 11/18/2014)
46 ANSWER to Complaint by DSI-ITI LLC, GLOBAL TELLINK CORPORATION.(VAN NOSTRAND, AARON) (Entered: 11/26/2014)

12/15/2014 12/16/2014 12/19/2014 01/05/2015 01/08/2015 01/14/2015 01/15/2015 01/23/2015
01/23/2015
01/26/2015 01/28/2015

47 Letter from Lindsey H. Taylor Requesting Entry of Scheduling Order re 45 Letter, Scheduling Conference. (TAYLOR, LINDSEY) (Entered: 12/15/2014)
48 Letter from Aaron Van Nostrand re 47 Letter. (VAN NOSTRAND, AARON) (Entered: 12/16/2014)
49 Letter from Aaron Van Nostrand. (Attachments: # 1 Brief in support of defendants' request for bifurcation of discovery)(VAN NOSTRAND, AARON) (Entered: 12/19/2014)
50 Letter from James E. Cecchi Regarding Bifurcation of Discovery re 49 Letter. (CECCHI, JAMES) (Entered: 01/05/2015)
51 Letter from James E. Cecchi Regarding Request To Compel Discovery. (CECCHI, JAMES) (Entered: 01/08/2015)
52 Letter from Aaron Van Nostrand re 51 Letter. (VAN NOSTRAND, AARON) (Entered: 01/14/2015)
53 Letter from James E. Cecchi Regarding Discovery re 51 Letter, 50 Letter, 52 Letter. (CECCHI, JAMES) (Entered: 01/15/2015)
54 TEXT ORDER: Please be advised that there shall be a telephone conference before the Undersigned on Tuesday, January 26, 2015, at 10:00 a.m. Defendants are directed to arrange and initiate the conference call. Ordered by Magistrate Judge Mark Falk on 1/23/15. (LM, ) (Entered: 01/23/2015)
55 AMENDED TEXT ORDER: Please be advised that there shall be a telephone conference before the Undersigned on Tuesday, January 27, 2015, 10:00 a.m. Defendants are directed to arrange and initiate the conference call. Ordered by Magistrate Judge Mark Falk on 1/23/15.. Signed by Magistrate Judge Mark Falk on 1/23/15. (LM, ) (Entered: 01/23/2015)
56 TEXT ORDER - Due to anticipated inclement weather, the conference scheduled for Tuesday, January 27, 2015, is hereby adjourned. It will be rescheduled as soon as practicable. Ordered by Magistrate Judge Mark Falk on 1/26/15. (LM, ) (Entered: 01/26/2015)
57 TEXT ORDER: Please be advised that the telephone conference before the Undersigned on 1/27/2015 is hereby rescheduled to January 30, 2015 at 10:30 a.m. Defendants are directed to arrange and initiate the conference call. Ordered by Magistrate Judge Mark Falk on 1/28/15. (LM, ) (Entered: 01/28/2015)

01/30/2015
02/03/2015 02/05/2015 02/17/2015 02/17/2015
03/03/2015 03/04/2015
03/05/2015 03/06/2015 03/09/2015

58 TEXT ORDER: Please be advised that the telephone conference before the Undersigned on 1/30/2015 is hereby rescheduled to February 3, 2015 at 11:00 a.m. Defendants are directed to arrange and initiate the conference call. Ordered by Magistrate Judge Mark Falk on 1/3028/15. (LM, ) (Entered: 01/30/2015)
Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Status Conference held on 2/3/2015. (LM, ) (Entered: 02/10/2015)
59 LETTER ORDER denying defts' 49 request to bifurcate discovery. Signed by Magistrate Judge Mark Falk on 2/5/2015. (nr, ) (Entered: 02/05/2015)
60 Letter from Lindsey H. Taylor Enclosing Revised Joint Discovery Plan re 59 Order. (Attachments: # 1 Revised Joint Discovery Plan)(TAYLOR, LINDSEY) (Entered: 02/17/2015)
61 SCHEDULING ORDER: Telephone Status Conference set for 3/26/2015 11:30 AM before Magistrate Judge Mark Falk. Amended Pleadings due by 5/29/2015. Fact Discovery due by 7/31/2015.. Signed by Magistrate Judge Mark Falk on 2/17/2015. (nr, ) (Entered: 02/18/2015)
62 Letter from Lindsey H. Taylor Regarding Discovery Confidentiality Order. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Declaration of Lindsey H. Taylor In Support of Entry of Discovery Confidentiality Order)(TAYLOR, LINDSEY) (Entered: 03/03/2015)
63 TEXT ORDER: The Court has received Plaintiffs' letter regarding a dispute over the terms of a discovery confidentiality order. The parties are directed to paragraph 10 of the Scheduling Order entered on February 17, 2015, for direction on how discovery is to proceed while this dispute is pending. Please be guided accordingly. Ordered by Magistrate Judge Mark Falk on 3/4/15. (LM, ) (Entered: 03/04/2015)
64 Letter from Aaron Van Nostrand re 62 Letter,. (VAN NOSTRAND, AARON) (Entered: 03/05/2015)
65 Letter from Aaron Van Nostrand. (Attachments: # 1 Proposed Amended Answer, # 2 Redline version of proposed Amended Answer)(VAN NOSTRAND, AARON) (Entered: 03/06/2015)
66 TEXT ORDER: Court has received Defendants' letter dated March 6, 2015. The request to amend, which is unopposed, is granted. Defendants should file their amended pleading immediately. The request for an adjournment of the March 25 conference is also granted.

03/09/2015 03/09/2015 04/02/2015 04/27/2015 04/29/2015
04/29/2015 04/30/2015 05/01/2015 05/04/2015 05/05/2015 05/06/2015 05/08/2015

The conference will now proceed on April 2, 2015, at 10:00 a.m. Ordered by Magistrate Judge Mark Falk on 3/9/15. (LM, ) (Entered: 03/09/2015)
67 AMENDED ANSWER to Complaint by DSI-ITI LLC, GLOBAL TELLINK CORPORATION. (Attachments: # 1 Certificate of Service)(VAN NOSTRAND, AARON) (Entered: 03/09/2015)
68 Letter from Lindsey H. Taylor Regarding Discovery Confidentiality Order re 64 Letter, 62 Letter,. (TAYLOR, LINDSEY) (Entered: 03/09/2015)
Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Conference held on 4/2/2015. (LM, ) (Entered: 04/13/2015)
69 Letter from James E. Cecchi Requesting Permission To File Formal Motion Regarding Production Of Documents. (CECCHI, JAMES) (Entered: 04/27/2015)
70 TEXT ORDER: Please be advised that there shall be a telephone conference before the Undersigned on May 1, 2015 at 10:45 a.m. Plaintiff's counsel is directed to arrange and initiate the conference call. Ordered by Magistrate Judge Mark Falk on 4/29/15.(LM, ) (Entered: 04/29/2015)
71 Letter from Aaron Van Nostrand re 70 Order,. (VAN NOSTRAND, AARON) (Entered: 04/29/2015)
72 Letter from Aaron Van Nostrand. (Attachments: # 1 Proposed Discovery Confidentiality Order)(VAN NOSTRAND, AARON) (Entered: 04/30/2015)
73 Discovery Confidentiality Order. Signed by Magistrate Judge Mark Falk on 5/1/2015. (nr, ) (Entered: 05/01/2015)
74 Letter from Aaron Van Nostrand re 69 Letter. (VAN NOSTRAND, AARON) (Entered: 05/04/2015)
Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Conference held on 5/5/2015. (LM, ) (Entered: 05/05/2015)
75 Letter from Philip R. Sellinger. (SELLINGER, PHILIP) (Entered: 05/06/2015)
76 Letter from James E. Cecchi Regarding GTL Request For Permission To File Motions re 75 Letter. (CECCHI, JAMES) (Entered: 05/08/2015)

05/08/2015
05/14/2015 05/18/2015
05/19/2015 05/19/2015
05/21/2015 05/22/2015 05/26/2015 05/28/2015 06/04/2015 06/18/2015
07/01/2015

77 Exhibit to 76 Letter by JOHN F. CROW, CRYSTAL GIBSON, BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY, MILAN SKLADANY. (CECCHI, JAMES) (Entered: 05/08/2015)
78 Letter from Philip R. Sellinger re 76 Letter. (SELLINGER, PHILIP) (Entered: 05/14/2015)
79 TEXT ORDER: Please be advised that there shall be a telephone conference before the Undersigned on 5/22/2015 at 10:30 a.m. Plaintiff's counsel is directed to arrange for and initiate the conference call. Ordered by Magistrate Judge Mark Falk on 5/18/15. (LM, ) (Entered: 05/18/2015)
80 Letter from Philip R. Sellinger re 79 Order,. (SELLINGER, PHILIP) (Entered: 05/19/2015)
81 TEXT ORDER: Please be advised the telephone conference before the Undersigned on 5/22/2015 is hereby rescheduled to May 26, 2015 at 10:30 a.m. Plaintiff's counsel is directed to arrange for and initiate the conference call. Ordered by Magistrate Judge Mark Falk on 5/19/15. (LM, ) (Entered: 05/19/2015)
82 Letter from James E. Cecchi Regarding GTL Document Production. (Attachments: # 1 Text of Proposed Order)(CECCHI, JAMES) (Entered: 05/21/2015)
83 Letter from Aaron Van Nostrand re 82 Letter. (VAN NOSTRAND, AARON) (Entered: 05/22/2015)
Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Conference held on 5/26/2015. (LM, ) (Entered: 06/02/2015)
84 Letter from Aaron Van Nostrand. (VAN NOSTRAND, AARON) (Entered: 05/28/2015)
85 Letter from James E. Cecchi Regarding Discovery. (CECCHI, JAMES) (Entered: 06/04/2015)
86 Letter on behalf of deft's regarding the filing of a Motion and supporting documents with the U.S. Judicial Panel on Multidistrict Litigation (nr, ) (Documents forwarded to Chambers) (Entered: 06/19/2015)
87 Letter from James E. Cecchi Regarding Discovery. (Attachments: # 1 Text of Proposed Order)(CECCHI, JAMES) (Entered: 07/01/2015)

07/02/2015 07/08/2015 07/14/2015 07/15/2015
07/28/2015 08/03/2015 08/04/2015 08/06/2015 08/07/2015 08/11/2015 08/14/2015

88 ORDER setting in-person Case Management Conference before the Undersigned on July 14, 2015 at 10:00 a.m. Signed by Magistrate Judge Mark Falk on 7/2/15. (LM, ) (Entered: 07/02/2015)
89 Letter from Aaron Van Nostrand re 87 Letter. (VAN NOSTRAND, AARON) (Entered: 07/08/2015)
Minute Entry for proceedings held before Magistrate Judge Mark Falk: Case Management Conference held on 7/14/2015. (LM, ) (Entered: 07/17/2015)
90 TEXT ORDER: Please be advised that there shall be a telephone conference before the Undersigned on August 19, 2015 at 11:30 a.m. Defendant's counsel is directed to arrange for and initiate the conference call. So Ordered by Magistrate Judge Mark Falk on 7i/15/15. (LM, ) (Entered: 07/15/2015)
91 Letter from Lindsey H. Taylor Enclosing Proposed Amended Scheduling Order. (Attachments: # 1 Text of Proposed Order)(TAYLOR, LINDSEY) (Entered: 07/28/2015)
93 ORDER: Fact Discovery due by 10/30/2015; Deft's shall file their motion to compel arbitration on or before 8/4/2015, etc.. Signed by Magistrate Judge Mark Falk on 8/3/2015. (nr, ) (Entered: 08/04/2015)
92 Letter from Aaron Van Nostrand. (VAN NOSTRAND, AARON) (Entered: 08/04/2015)
94 ORDER granting GTL's request to change the deadline to file the motion to compel arbitration from 8/4/2015 to 8/7/2015. Signed by Magistrate Judge Mark Falk on 8/5/2015. (nr, ) (Entered: 08/07/2015)
95 MOTION to Compel Arbitration by DSI-ITI LLC, GLOBAL TELLINK CORPORATION. (Attachments: # 1 Brief, # 2 Declaration of John W. Baker, II with Ex. A, B and C, # 3 Certificate of Service)(SELLINGER, PHILIP) (Entered: 08/07/2015)
Set/Reset Deadlines as to 95 MOTION to Compel Arbitration. Motion set for 9/8/2015 before Judge William J. Martini. The motion will be decided on the papers. No appearances required unless notified by the court. (nr, ) (Entered: 08/11/2015)
96 Letter from James E. Cecchi Regarding Status of Discovery For August 18, 2015 Conference re 90 Order,. (CECCHI, JAMES) (Entered: 08/14/2015)

08/19/2015

97 Certification of AARON VAN NOSTRAND PURSUANT TO L. CIV. R. 5.3(b)(2) IN SUPPORT OF ENTRY OF DISCOVERY CONFIDENTIALITY ORDER on behalf of DSI-ITI LLC, GLOBAL TELLINK CORPORATION Re 73 Discovery Confidentiality Order. (Attachments: # 1 Certificate of Service)(VAN NOSTRAND, AARON) (Entered: 08/19/2015)

08/19/2015

Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Conference held on 8/19/2015. (LM, ) (Entered: 09/03/2015)

08/20/2015

98 Letter from Lindsey H. Taylor Enclosing Proposed Order Regarding Discovery and Scheduling For Motion To Compel Arbitration re 90 Order, 95 MOTION to Compel Arbitration, 96 Letter. (Attachments: # 1 Text of Proposed Order)(TAYLOR, LINDSEY) (Entered: 08/20/2015)

08/25/2015

99 BRIEF in Opposition filed by JOHN F. CROW, CRYSTAL GIBSON, BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY, MILAN SKLADANY re 95 MOTION to Compel Arbitration (Attachments: # 1 Declaration of Barbara Skladany, # 2 Declaration of Bobbie James, # 3 Declaration of Betty King, # 4 Declaration of Crystal Gibson, # 5 Declaration of Mark Skladany, # 6 Declaration of Lindsey H. Taylor, # 7 Exhibit A)(CECCHI, JAMES) (Entered: 08/25/2015)

08/25/2015

100 Exhibit to 99 Brief in Opposition to Motion, by JOHN F. CROW, CRYSTAL GIBSON, BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY, MILAN SKLADANY. (CECCHI, JAMES) (Entered: 08/25/2015)

08/25/2015

101 MOTION to Seal Document 100 Exhibit (to Document) by JOHN F. CROW, CRYSTAL GIBSON, BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY, MILAN SKLADANY. (Attachments: # 1 Statement In Lieu of Brief, # 2 Text of Proposed Order)(CECCHI, JAMES) (Entered: 08/25/2015)

08/25/2015 102 ORDER setting a briefing schedule on motion to compel arbitration. Signed by Magistrate Judge Mark Falk on 8/25/2015. (nr, ) (Entered: 08/26/2015)

08/25/2015

Set/Reset Deadlines as to 101 MOTION to Seal Document 100 Exhibit (to Document) . Motion set for 9/21/2015 before Judge William J. Martini. The motion will be decided on the papers. No appearances required unless notified by the court. (nr, ) (Entered: 08/27/2015)

09/08/2015

103 REPLY BRIEF to Opposition to Motion filed by DSI-ITI LLC, GLOBAL TELLINK CORPORATION re 95 MOTION to Compel Arbitration (Attachments: # 1 Declaration John Baker (Reply), # 2 Declaration Vance Macdonald)(SELLINGER, PHILIP) (Entered: 09/08/2015)

10/05/2015 104 ORDER granting 101 Motion to Seal Exhibit B to the Declaration of Lindsey H. Taylor. Signed by Magistrate Judge Mark Falk on 10/05/2015. (nr, ) (Entered: 10/06/2015)

10/23/2015

105 Letter from James E. Cecchi Regarding Request For Entry of Default (public version) re 102 Order. (Attachments: # 1 Declaration of Lindsey H. Taylor, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Text of Proposed Order)(CECCHI, JAMES) (Entered: 10/23/2015)

10/23/2015

106 Letter from James E. Cecchi Regarding Request For Entry of Default (sealed) re 105 Letter, 102 Order. (Attachments: # 1 Exhibit H, # 2 Exhibit I, # 3 Exhibit J, # 4 Exhibit K, # 5 Exhibit L)(CECCHI, JAMES) (Entered: 10/23/2015)

10/23/2015

107 MOTION to Seal Document 106 Letter by JOHN F. CROW, CRYSTAL GIBSON, BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY, MILAN SKLADANY. (Attachments: # 1 Supplement In Lieu of Brief, # 2 Text of Proposed Order)(CECCHI, JAMES) (Entered: 10/23/2015)

10/23/2015

Set/Reset Deadlines as to 107 MOTION to Seal Document 106 Letter . Motion set for 11/16/2015 before Judge William J. Martini. The motion will be decided on the papers. No appearances required unless notified by the court. (nr, ) (Entered: 10/26/2015)

10/26/2015 108 Letter from Lindsey H. Taylor Regarding Extension of Fact Discovery. (TAYLOR, LINDSEY) (Entered: 10/26/2015)

10/27/2015 109 Letter from Aaron Van Nostrand re 105 Letter,. (VAN NOSTRAND, AARON) (Entered: 10/27/2015)

10/30/2015 110 Letter from Aaron Van Nostrand re 106 Letter. (Attachments: # 1 Exhibit 1)(VAN NOSTRAND, AARON) (Entered: 10/30/2015)

11/04/2015

111 Letter from Lindsey H. Taylor Regarding Reply For Application To Enter Default re 105 Letter, 110 Letter, 106 Letter. (Attachments: # 1 Exhibit A)(TAYLOR, LINDSEY) (Entered: 11/04/2015)

11/25/2015 112 TEXT ORDER: Please be advised that there shall be a telephone conference before the Undersigned on December 2, 2015 at 10:15 a.m.

Plaintiff's counsel is directed to arrange for the conference call. So Ordered by Magistrate Judge Mark Falk on 11/25/15. (LM, ) (Entered: 11/25/2015)

12/02/2015

Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Conference held on 12/2/2015. (LM, ) (Entered: 01/04/2016)

12/30/2015

113 ORDER granting 107 Motion to Seal the unredacted version of the letter brief and exhibits H and L to the Declaration of Lindsey H. Taylor. Signed by Magistrate Judge Mark Falk on 12/30/2015. (nr, ) (Entered: 12/30/2015)

01/15/2016

114 TEXT ORDER: Please be advised that there shall be a telephone conference before the Undersigned on February 5, 2016 at 11:00 a.m. Defendant's counsel is directed to arrange for the conference call. So Ordered by Magistrate Judge Mark Falk on 1/15/16. (LM, ) (Entered: 01/15/2016)

02/03/2016

115 Letter from Aaron Van Nostrand enclosing application for Pro Hac Vice admission of Michael Sklaire. (Attachments: # 1 Certification of Aaron Van Nostrand in support of Pro Hac Vice admission of Michael Sklaire, # 2 Certificate of Good Standing for Michael Sklaire, # 3 Text of Proposed Order)(VAN NOSTRAND, AARON) (Entered: 02/03/2016)

02/05/2016

Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Conference held on 2/5/2016. (LM, ) (Entered: 03/04/2016)

02/11/2016 116 OPINION. Signed by Judge William J. Martini on 2/11/16. (gh, ) (Entered: 02/11/2016)

02/11/2016 117 ORDER granting motion to compel arbitration as to Plaintiff Gibson and denying as to the remaining Plaintiffs. Signed by Judge William J. Martini on 2/11/16. (gh, ) (Entered: 02/11/2016)

02/16/2016

118 Letter from Lindsey H. Taylor Enclosing Proposed Order Regarding Extending Fact Discovery. (Attachments: # 1 Text of Proposed Order)(TAYLOR, LINDSEY) (Entered: 02/16/2016)

02/18/2016 119 ORDER: Fact Discovery due by 3/31/2016.,. Signed by Magistrate Judge Mark Falk on 2/17/2016. (nr, ) (Entered: 02/18/2016)

03/09/2016

120 NOTICE OF APPEAL as to 117 Order on Motion to Compel by DSIITI LLC, GLOBAL TELLINK CORPORATION. Filing fee $ 505, receipt number 0312-6968094. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified

list in lieu of the record and/or the certified copy of the docket entries. (VAN NOSTRAND, AARON) (Entered: 03/09/2016)

03/18/2016

121 USCA Case Number 16-1555 for 120 Notice of Appeal (USCA), filed by DSI-ITI LLC, GLOBAL TEL*LINK CORPORATION. USCA Case Manager Desiree (Document Restricted - Court Only) (ca3sb, ) (Entered: 03/18/2016)

04/04/2016

122 Letter from Lindsey H. Taylor Regarding Document Production re 105 Letter, 93 Order, Set Scheduling Order Deadlines, Set Deadlines, 106 Letter. (Attachments: # 1 Exhibit A)(TAYLOR, LINDSEY) (Entered: 04/04/2016)

07/15/2016

123 TEXT ORDER: Please be advised that there shall be a telephone conference before the Undersigned on July 29, 2016 at 4:00 p.m. Plaintiff's counsel is directed to arrange for the conference call. So Ordered by Magistrate Judge Mark Falk on 7/15/16. (LM, ) (Entered: 07/15/2016)

07/29/2016

124 TEXT ORDER: Please be advised that the telephone conference before the Undersigned on July 29, 2016 is hereby rescheduled to August 2, 2016 at 3:15 p.m. Plaintiff's counsel is directed to arrange for the conference call. So Ordered by Magistrate Judge Mark Falk7/29/16. (LM, ) (Entered: 07/29/2016)

08/02/2016

Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Conference held on 8/2/2016. (LM, ) (Entered: 08/02/2016)

09/09/2016 125 Letter from GEORGE HAMILTON. (JB, ) (Entered: 09/12/2016)

03/29/2017

126 USCA JUDGMENT as to 120 Notice of Appeal (USCA), filed by DSIITI LLC, GLOBAL TEL*LINK CORPORATION (ca3dwb, ) (Entered: 03/29/2017)

03/30/2017

127 TEXT ORDER: Please be advised that there shall be a telephone conference before the Undersigned on April 6, 2017 at 10:15 a.m. Plaintiff's counsel is directed to arrange for the conference call. So Ordered by Magistrate Judge Mark Falk on 3/30/17. (LM, ) (Entered: 03/30/2017)

04/06/2017

Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Conference held on 4/6/2017. (LM, ) (Entered: 04/06/2017)

04/20/2017

128 MANDATE of USCA as to 120 Notice of Appeal (USCA), filed by DSI-ITI LLC, GLOBAL TEL*LINK CORPORATION (Finance notified) (Attachments: # 1 Not _Precedential_Opinion)(ca3dwb, ) (Entered: 04/20/2017)

05/10/2017 129 Letter from Lindsey H. Taylor Enclosing Proposed Scheduling Order. (Attachments: # 1 Text of Proposed Order)(TAYLOR, LINDSEY) (Entered: 05/10/2017)

05/18/2017

130 SCHEDULING ORDER: Fact Discovery due by 7/14/2017. Class Certf. Motions due by 11/17/2017, opposition due 12/20/17, reply due 1/12/18; etc. Signed by Magistrate Judge Mark Falk on 5/17/17. (DD, ) (Entered: 05/19/2017)

06/22/2017

131 TEXT ORDER: Please be advised that the telephone conference before the Undersigned on 6/21/17 is hereby rescheduled to June 30, 2017 at 11:00 a.m. Plaintiff's counsel is directed to arrange for the conference call. So Ordered by Magistrate Judge Mark Falk on 6/22/17.(LM, ) (Entered: 06/22/2017)

06/22/2017

132 TEXT ORDER: Please be advised that the telephone conference before the Undersigned on June 21, 2017 is hereby rescheduled to Friday, June 23, 2017 at 10:00 a.m. Plaintiff's counsel is directed to arrange for the conference call. So Ordered by Magistrate Judge Mark Falk on 6/22/17.(LM, ) (Entered: 06/22/2017)

06/23/2017

Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Conference held on 6/23/2017. (LM, ) (Entered: 06/23/2017)

07/12/2017

133 Letter from Lindsey H. Taylor Regarding Request To Enter Default re 111 Letter, 109 Letter, 105 Letter, 110 Letter, 130 Scheduling Order, 106 Letter, 102 Order. (TAYLOR, LINDSEY) (Entered: 07/12/2017)

07/19/2017 134 Letter from Lindsey H. Taylor Enclosing Proposed Revised Scheduling Order re 130 Scheduling Order. (Attachments: # 1 Text of Proposed Order)(TAYLOR, LINDSEY) (Entered: 07/19/2017)

07/19/2017

135 TEXT ORDER: Please be advised there shall be a telephone conference before the Undersigned on July 26, 2017, at 11:30 a.m. Plaintiff is directed to arrange the call. So Ordered by Magistrate Judge Mark Falk on 7/19/17. (LM, ) (Entered: 07/19/2017)

07/20/2017 136 SCHEDULING ORDER: All Fact Discovery Shall be completed by 8/25/2017, etc. Signed by Magistrate Judge Mark Falk on 7/20/2017. (JB, ) (Entered: 07/20/2017)

07/26/2017

Minute Entry for proceedings held before Magistrate Judge Mark Falk: Telephone Conference held on 7/26/2017. (LM, ) (Entered: 08/03/2017)

07/28/2017 137 Notice to be terminated and withdraw from Notices of Electronic filing as to case. Attorney PHILIP R. SELLINGER terminated. (SELLINGER, PHILIP) (Entered: 07/28/2017)

10/13/2017 138 NOTICE: A Status Conference has been scheduled for 11/6/17 at 10:30 before Judge William J. Martini. (gh, ) (Entered: 10/13/2017)

10/27/2017

NOTICE: The Status Conference scheduled for 11/6/17 before Judge William J. Martini has been adjourned until Tuesday, November 14, 2017 at 11AM (gh, ) (Entered: 10/27/2017)

11/14/2017 139 Minute Entry for proceedings held before Judge William J. Martini: Status Conference held on 11/14/2017. (gh, ) (Entered: 11/14/2017)

12/13/2017 140 Letter from Aaron Van Nostrand re 136 Scheduling Order. (VAN NOSTRAND, AARON) (Entered: 12/13/2017)

12/18/2017

141 ORDER permitting all briefing to be filed on or about 2/9/18, etc. Signed by Judge William J. Martini on 12/18/17. (gh, ) (Entered: 12/18/2017)

01/08/2018

142 NOTICE of Appearance by PETER A. MUHIC on behalf of JOHN F. CROW, CRYSTAL GIBSON, BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY, MILAN SKLADANY (MUHIC, PETER) (Entered: 01/08/2018)

01/08/2018

143 NOTICE of Appearance by JOSEPH H. MELTZER on behalf of JOHN F. CROW, CRYSTAL GIBSON, BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY, MILAN SKLADANY (MELTZER, JOSEPH) (Entered: 01/08/2018)

01/17/2018 144 Letter from Aaron Van Nostrand re 141 Order. (VAN NOSTRAND, AARON) (Entered: 01/17/2018)

01/19/2018

145 ORDER amending briefing schedule: Opposition due 1/26/18; Reply due 2/23/18; all documents will then be submitted to the Court for filing on 2/23/18. Signed by Judge William J. Martini on 1/18/18. (gh, ) (Entered: 01/19/2018)

02/26/2018

NOTICE: A Status/Settlement Conference has been scheduled for 3/1318 at 11AM before Judge William J. Martini (gh, ) (Entered: 02/26/2018)

02/27/2018

NOTICE: STATUS/SETTLEMENT CONFERENCE HAS BEEN RESCHEDULED TO THURSDAY, MARCH 15, 2018 AT 11:30 A.M. BEFORE JUDGE WILLIAM J. MARTINI (gh, ) (Entered: 02/27/2018)

02/27/2018 146 NOTICE of Appearance by JUSTIN P. WALDER on behalf of All Plaintiffs (WALDER, JUSTIN) (Entered: 02/27/2018)

02/27/2018

147 MOTION to Certify Class by CRYSTAL GIBSON, BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY. (Attachments: # 1 Declaration of Barbara Skladany, # 2 Declaration of Betty King, # 3 Declaration Bobbie James, # 4 Declaration of Lindsey H. Taylor, # 5 Exhibit M, # 6 Exhibit N)(TAYLOR, LINDSEY) (Entered: 02/27/2018)

02/27/2018 148 BRIEF in Support filed by BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY re 147 MOTION to Certify Class (TAYLOR, LINDSEY)

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 02/27/2018)

02/27/2018

149 Exhibit to 147 Motion to Certify Class, by BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G, # 7 Exhibit H, # 8 Exhibit I, # 9 Exhibit J, # 10 Exhibit K, # 11 Exhibit L, # 12 Exhibit O)(TAYLOR, LINDSEY)

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 02/27/2018)

02/27/2018

150 RESPONSE in Opposition filed by DSI-ITI LLC, GLOBAL TELLINK CORPORATION re 147 MOTION to Certify Class (Attachments: # 1 Exhibit 10, # 2 Exhibit 12)(VAN NOSTRAND, AARON) (Entered: 02/27/2018)

02/27/2018

151 BRIEF in Opposition filed by DSI-ITI LLC, GLOBAL TELLINK CORPORATION re 147 MOTION to Certify Class (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 11)(VAN NOSTRAND, AARON)

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following

the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 02/27/2018)

02/27/2018

152 REPLY BRIEF to Opposition to Motion filed by BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY re 147 MOTION to Certify Class (TAYLOR, LINDSEY)

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 02/27/2018)

02/27/2018

153 DECLARATION of Lindsey H. Taylor re 152 Reply Brief to Opposition to Motion,, by BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY. (TAYLOR, LINDSEY) (Entered: 02/27/2018)

02/27/2018

154 Exhibit to 153 Declaration by BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY. (Attachments: # 1 Exhibit Q)(TAYLOR, LINDSEY)

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 02/27/2018)

02/27/2018

155 MOTION to Seal Briefs and Certain Exhibits Filed in Connection with Plaintiffs' Motion for Class Certification by DSI-ITI LLC, GLOBAL TELLINK CORPORATION. (Attachments: # 1 Brief, # 2 Text of Proposed Order)(VAN NOSTRAND, AARON) (Entered: 02/27/2018)

02/28/2018

Set Deadlines as to 155 MOTION to Seal Briefs and Certain Exhibits Filed in Connection with Plaintiffs' Motion for Class Certification, 147 MOTION to Certify Class . Motion set for 4/2/2018 before Judge William J. Martini. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (JB, ) (Entered: 02/28/2018)

02/28/2018 156 TEXT ORDER: The parties are directed to submit a supplemental position paper not to exceed 2 pages. Said document shall be for the

Court's eyes only and fax to Chambers at 973-645-4703 no later than 3/14/18 by 12 noon. So Ordered by Judge William J. Martini on 2/28/17. (gh, ) (Entered: 02/28/2018)

03/15/2018 157 Minute Entry for proceedings held before Judge William J. Martini: Status Conference held on 3/15/2018. (gh, ) (Entered: 03/15/2018)

03/27/2018

158 MOTION for Summary Judgment by DSI-ITI LLC, GLOBAL TELLINK CORPORATION. Responses due by 4/23/2018 (Attachments: # 1 Text of Proposed Order, # 2 Declaration of Aaron Van Nostrand, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 10)(VAN NOSTRAND, AARON) (Entered: 03/27/2018)

03/27/2018

159 BRIEF in Support of Defendants' Motion for Summary Judgment (Attachments: # 1 Statement of Undisputed Material Facts, # 2 Exhibit 1, # 3 Exhibit 4, # 4 Exhibit 5, # 5 Exhibit 6, # 6 Exhibit 7, # 7 Exhibit 8, # 8 Exhibit 9, # 9 Exhibit 11 (part 1), # 10 Exhibit 11 (part 2), # 11 Exhibit 11 (part 3))(VAN NOSTRAND, AARON)

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 03/27/2018)

03/29/2018 160 Letter from Lindsey H. Taylor Regarding Proposed Briefing Schedule re 158 MOTION for Summary Judgment . (TAYLOR, LINDSEY) (Entered: 03/29/2018)

03/29/2018

Set Deadlines as to 158 MOTION for Summary Judgment . Motion set for 5/7/2018 before Judge William J. Martini. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (JB, ) (Entered: 03/29/2018)

04/02/2018

161 ORDER: Briefing schedule approved - Plaintiff's response due 4/27/18; reply due 5/18/18. Signed by Judge William J. Martini on 4/2/18. (gh, ) (Entered: 04/02/2018)

04/23/2018 162 Letter from Lindsey H. Taylor Regarding Briefing Schedule For Summary Judgment Motion re 161 Order, 160 Letter. (TAYLOR, LINDSEY) (Entered: 04/23/2018)

04/24/2018

163 ORDER granting Plaintiff's request for an extension to file their responsive papers by 5/4/18; reply papers to be filed by 5/25/18. Signed by Judge William J. Martini on 4/24/18. (gh, ) (Entered: 04/24/2018)

05/04/2018 164 Cross MOTION for Summary Judgment by BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY. (TAYLOR, LINDSEY) (Entered: 05/04/2018)

05/04/2018

165 BRIEF In Opposition To Motion For Summary Judgment And In Support of Cross-Motion For Summary Judgment (Attachments: # 1 Response To Statement of Uncontested Facts and Counterstatement of Material Facts, # 2 Declaration of Lindsey H. Taylor, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P, # 19 Exhibit Q, # 20 Exhibit R)(TAYLOR, LINDSEY)

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 05/04/2018)

05/04/2018

Set/Reset Deadlines as to 164 Cross MOTION for Summary Judgment . Motion set for 6/4/2018 before Judge William J. Martini. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (ld, ) (Entered: 05/04/2018)

05/07/2018 166 Letter from James A. Plaisted, Esq.. (PLAISTED, JAMES) (Entered: 05/07/2018)

05/08/2018

167 TEXT ORDER: Plaintiffs' unopposed request to refile their May 4, 2018 papers is GRANTED. The corrected papers must be filed immediately. So Ordered by Judge William J. Martini on 5/8/18. (gh, ) (Entered: 05/08/2018)

05/08/2018

168 BRIEF in Support filed by All Plaintiffs re 164 Cross MOTION for Summary Judgment (Attachments: # 1 Declaration of James A. Plaisted, # 2 Exhibit 1, # 3 Exhibit 2 Part 1, # 4 Exhibit 2 Part 2, # 5 Supplement Letter to Judge Martini)(PLAISTED, JAMES)

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 05/08/2018)

05/23/2018 169 Letter from Aaron Van Nostrand re 163 Order. (VAN NOSTRAND, AARON) (Entered: 05/23/2018)

05/24/2018

170 ORDER granting Defendant's request for an extension to file their reply until 6/8/18. Signed by Judge William J. Martini on 5/24/18. (gh, ) (Entered: 05/24/2018)

06/07/2018 171 Letter from Aaron Van Nostrand re 163 Order, 170 Order. (VAN NOSTRAND, AARON) (Entered: 06/07/2018)

06/08/2018

172 TEXT ORDER: Defendant's second request for an extension to file their reply brief is granted in part; reply brief shall be filed no later than 11AM on Monday June 11, 2018; Failure to file said brief by the stated deadline will result in the papers not being considered. So Ordered by Judge William J. Martini on 6/8/18. (gh, ) (Entered: 06/08/2018)

06/11/2018

173 REPLY to Response to Motion filed by DSI-ITI LLC, GLOBAL TELLINK CORPORATION re 158 MOTION for Summary Judgment , 164 Cross MOTION for Summary Judgment (Attachments: # 1 Response to Plaintiff's Counter-statement of Factgs)(VAN NOSTRAND, AARON) (Entered: 06/11/2018)

06/18/2018

174 MOTION to Seal Document 168 Brief in Support of Motion,, 159 Brief,,, 173 Reply to Response to Motion, 165 Brief,,,, by DSI-ITI LLC, GLOBAL TELLINK CORPORATION. (Attachments: # 1 Brief, # 2 Text of Proposed Order)(VAN NOSTRAND, AARON) (Entered: 06/18/2018)

06/20/2018

Set Deadlines as to 174 MOTION to Seal Document 168 Brief in Support of Motion,, 159 Brief,,, 173 Reply to Response to Motion, 165 Brief,,,, . Motion set for 7/16/2018 before Judge William J. Martini. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (ek) (Entered: 06/20/2018)

07/10/2018

175 Letter from Aaron Van Nostrand re 151 Brief in Opposition to Motion,,, 173 Reply to Response to Motion,. (Attachments: # 1 Exhibit In re GTL decision)(VAN NOSTRAND, AARON) (Entered: 07/10/2018)

07/11/2018

176 ORDER granting Defendants' 155 Motion to Seal Briefs and Certain Exhibits in support of Plaintiffs' Motion for Class Certification, etc . Signed by Magistrate Judge Mark Falk on 07/11/2018. (ek) (Entered: 07/11/2018)

07/11/2018

177 ORDER granting Defendants' 174 Motion to Seal Document in connection with the parties' cross-motion for summary judgment, etc. Signed by Magistrate Judge Mark Falk on 07/11/2018. (ek) (Entered: 07/11/2018)

07/12/2018 178 Letter from Lindsey H. Taylor Regarding Arkansas Decision re 175 Letter. (TAYLOR, LINDSEY) (Entered: 07/12/2018)

08/06/2018 179 OPINION. Signed by Judge William J. Martini on 8/6/18. (gh, ) (Entered: 08/06/2018)

08/06/2018 180 ORDER granting 147 Motion to Certify Class on Counts One and Six, etc. Signed by Judge William J. Martini on 8/6/18. (gh, ) (Entered: 08/06/2018)

08/06/2018 181 OPINION. Signed by Judge William J. Martini on 8/6/18. (gh, ) (Entered: 08/06/2018)

08/06/2018 182 ORDER denying 158 Motion for Summary Judgment ; denying 164 Cross Motion for Partial Summary Judgment. Signed by Judge William J. Martini on 8/6/18. (gh, ) (Entered: 08/06/2018)

08/16/2018

183 Letter from James E. Cecchi Regarding Scheduling re 179 Opinion, 181 Opinion, 182 Order on Motion for Summary Judgment, 180 Order on Motion to Certify Class. (CECCHI, JAMES) (Entered: 08/16/2018)

08/21/2018

184 NOTICE: A Status/Settlement Conference has been scheduled before Judge William J. Martini for 9/5/18 at 10 a.m. Confidential position papers shall be faxed (973-645-4703) to chambers on 9/4/18 no later than 12 noon. (gh, ) (Entered: 08/21/2018)

08/29/2018 185 NOTICE of Appearance by ERIC S. ARONSON on behalf of DSI-ITI LLC, GLOBAL TELLINK CORPORATION (ARONSON, ERIC) (Entered: 08/29/2018)

08/29/2018 186 Letter from Eric Aronson re 184 Notice (Other). (ARONSON, ERIC) (Entered: 08/29/2018)

08/30/2018

NOTICE: The Court will grant the parties request to adjourn the settlement conference scheduled for 9/5/18. (gh, ) (Entered: 08/30/2018)

03/26/2019 187 Letter from James E. Cecchi Regarding Mediation. (CECCHI, JAMES) (Entered: 03/26/2019)

04/02/2019 188 Letter from James E. Cecchi Enclosing Proposed Notice Plan. (Attachments: # 1 Declaration of Steven Weisbrot, Esq., # 2 Exhibit A,

# 3 Exhibit B, # 4 Exhibit C, # 5 Text of Proposed Order)(CECCHI, JAMES) (Entered: 04/02/2019)

04/02/2019

189 ORDER REFERRING CASE to Mediation. The parties have selected Stephen M. Orlofsky. Signed by Judge William J. Martini on 3/29/19. (gh, ) (Entered: 04/02/2019)

04/03/2019 190 Letter from Aaron Van Nostrand re Plaintiffs' Proposed Notice Plan re 188 Letter. (VAN NOSTRAND, AARON) (Entered: 04/03/2019)

04/05/2019

191 Letter from Aaron Van Nostrand re: application for Pro Hac Vice admission of Derek T. Ho. (Attachments: # 1 Certification of Aaron Van Nostrand with Attachments, # 2 Text of Proposed Order)(VAN NOSTRAND, AARON) (Entered: 04/05/2019)

04/05/2019 192 Letter from James E. Cecchi Regarding Notice Plan re 190 Letter, 188 Letter. (CECCHI, JAMES) (Entered: 04/05/2019)

04/08/2019 193 ORDER Granting Pro hac vice admission of Derek T. Ho., etc. Signed by Magistrate Judge Mark Falk on 4/8/2019. (JB, ) (Entered: 04/08/2019)

04/09/2019

194 Notice of Request by Pro Hac Vice Derek T. Ho to receive Notices of Electronic Filings. ( Pro Hac Vice fee $ 150 receipt number 03129567058.) (VAN NOSTRAND, AARON) (Entered: 04/09/2019)

04/09/2019

Pro Hac Vice counsel, DEREK T. HO, has been added to receive Notices of Electronic Filing. Pursuant to L.Civ.R. 101.1, only local counsel are entitled to sign and file papers, enter appearances and receive payments on judgments, decrees or orders. (JB, ) (Entered: 04/09/2019)

04/12/2019

195 TEXT ORDER: The Court is in receipt of the parties' letters regarding the class notice plan. ECF Nos. 188, 190, 192. The parties SHALL meet and confer regarding the proposed notice plan. By May 3, 2019, the parties SHALL submit a joint letter, setting forth (1) all agreedupon aspects of the notice plan (with a proposed plan attached); (2) each partys additional terms or steps that were not mutually agreed upon; and (3) each parties objections to the other partys proposed additional terms. The parties MAY respond to the other partys objections by May 17, 2019. At that time, the Court will schedule the requested pre-trial conference. So Ordered by Judge William J. Martini on 4/12/19. (gh, ) (Entered: 04/12/2019)

04/15/2019 196 Letter from Kevin R. Schrubb, I, requesting inclusion into the class action suit., etc (JB, ) (Entered: 04/16/2019)

05/03/2019

197 Letter from Lindsey H. Taylor Regarding Notice Plan re 195 Order,, 188 Letter. (Attachments: # 1 Declaration Supplemental Declaration of Steven Weisbrot, # 2 Text of Proposed Order, # 3 Exhibit A to Proposed Order, # 4 Exhibit B to Proposed Order, # 5 Exhibit C to Proposed Order)(TAYLOR, LINDSEY) (Entered: 05/03/2019)

06/10/2019

198 ORDER Approving Notice and Summary Notice of Pendency of a Class Action. Signed by Judge William J. Martini on 6/10/19. (gh, ) (Entered: 06/10/2019)

10/03/2019

NOTICE: A Status/Settlement Conference has been scheduled for 10/21/19 at 11AM before Judge William J. Martini (gh, ) (Entered: 10/03/2019)

10/10/2019

199 DECLARATION of Agnieszka Jeter re 198 Order Regarding Notice To Class by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(TAYLOR, LINDSEY) (Entered: 10/10/2019)

10/10/2019 200 NOTICE of Appearance by MATTHEW EDWARD FRISCH on behalf of All Plaintiffs (FRISCH, MATTHEW) (Entered: 10/10/2019)

10/11/2019

NOTICE: The Status Conference scheduled before Judge William J. Martini on 10/21/19 has been RE-SCHEDULED TO 10/22/19 at 11:00 a.m. (gh, ) (Entered: 10/11/2019)

10/22/2019 201 Minute Entry for proceedings held before Judge William J. Martini: Status Conference held on 10/22/2019. (gh, ) (Entered: 10/22/2019)

10/22/2019

202 NOTICE of Hearing: Settlement Conference set for 12/10/2019 10:00 AM before Judge William J. Martini. Four page position papers shall be faxed to Chambers no later than 12/2/19 by noon (973-645-4703) Jury Trial scheduled for 3/9/2020 at 9:30 a.m.(gh, ) (Entered: 10/22/2019)

10/25/2019 203 Letter from Defendants Global Tel*Link Corp.. (VAN NOSTRAND, AARON) (Entered: 10/25/2019)

10/30/2019

NOTICE of Hearing: Settlement Conference RE-SCHEDULED for 1/9/2020 10:00 AM before Judge William J. Martini. (gh, ) (Entered: 10/30/2019)

01/07/2020 204 Minute Entry for proceedings held before Judge William J. Martini: Telephone Conference held on 1/7/2020. (gh, ) (Entered: 01/07/2020)

01/15/2020 205 Letter from Defedants, Global Tel*Link Corp and DSI-ITI regarding Pretrial Schedule. (VAN NOSTRAND, AARON) (Entered: 01/15/2020)

01/16/2020

207 ORDER setting Final Pretrial Conference for 2/20/2020 at 02:00 PM in Newark - Courtroom 9 before Chief Mag. Judge Mark Falk. Submissions to be delivered on or before 2/17/2020. Signed by Chief Mag. Judge Mark Falk on 1/16/2020. (jr) (Entered: 01/17/2020)

01/17/2020

206 ORDER granting Defendant's letter request to file pretrial motions (#205); In limine motions limited to or exclude experts shall be filed by 2/7/20; Opposition due 2/14/20, etc. Signed by Judge William J. Martini on 1/17/20. (gh, ) (Entered: 01/17/2020)

01/20/2020

208 Letter from James E. Cecchi Regarding GTL's Request To File Dispositive Motions re 205 Letter, 206 Order. (CECCHI, JAMES) (Entered: 01/20/2020)

01/21/2020 210 Letter from Hai K. Nguyen requesting to be included in the class-action lawsuit. (jc, ) (Entered: 01/23/2020)

01/22/2020 209 Letter from Defendants in response to Plaintiffs 1/20/2020 letter. (VAN NOSTRAND, AARON) (Entered: 01/22/2020)

01/23/2020 211 ORDER granting 115 GTL's application for Michael R. Sklaire to be admitted pro hac vice in this case, etc. Signed by Chief Mag. Judge Mark Falk on 1/23/20. (jc, ) (Entered: 01/23/2020)

01/23/2020 218 ORDER denying Plaintiff's request for reconsideration (ECF #208), etc. Signed by Judge William J. Martini on 1/23/20. (gh, ) (Entered: 01/27/2020)

01/24/2020

212 MOTION for Judgment on the Pleadings by All Defendants. Responses due by 2/3/2020 (Attachments: # 1 Certification, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit E, # 6 Exhibit G, # 7 Text of Proposed Order)(VAN NOSTRAND, AARON) (Entered: 01/24/2020)

01/24/2020

213 STATEMENT of Undisputed Material Facts by DSI-ITI LLC, GLOBAL TELLINK CORPORATION. (Attachments: # 1 Exhibit 4, # 2 Exhibit 5, # 3 Exhibit 6, # 4 Exhibit 7)(VAN NOSTRAND, AARON) (Entered: 01/24/2020)

01/24/2020

214 STATEMENT of Undisputed Material Facts (Confidential Documents) by DSI-ITI LLC, GLOBAL TELLINK CORPORATION. (Attachments: # 1 Index 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 8)(VAN NOSTRAND, AARON)

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 01/24/2020)

01/24/2020 215 BRIEF in Support of Motion for Judgment on the Pleadings (VAN NOSTRAND, AARON)

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 01/24/2020)

01/24/2020

216 MOTION Decertification of Class by DSI-ITI LLC, GLOBAL TELLINK CORPORATION. (Attachments: # 1 Certification, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 7, # 7 Text of Proposed Order)(VAN NOSTRAND, AARON) (Entered: 01/24/2020)

01/24/2020 217 BRIEF in Support of Decertification (Attachments: # 1 Exhibit 1, # 2 Exhibit 6)(VAN NOSTRAND, AARON)

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 01/24/2020)

01/24/2020 219 Letter from Gerald Pohida seeking to verify status in this class action. (jc, ) (Entered: 01/27/2020)

01/27/2020

Set/Reset Deadlines as to 216 MOTION Decertification of Class, 212 MOTION for Judgment on the Pleadings. Motion set for 2/18/2020 before Judge William J. Martini. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (jc, ) (Entered: 01/27/2020)

02/03/2020

220 BRIEF in Opposition filed by BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY re 216 MOTION Decertification of Class , 212 MOTION for Judgment on the Pleadings (Attachments: # 1 Response To Rule 56.1 Statement,

# 2 Declaration of Lindsey H. Taylor, # 3 Exhibit A)(CECCHI, JAMES)

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 02/03/2020)

02/04/2020 221 NOTICE of Appearance by JAN ALAN BRODY on behalf of All Plaintiffs (BRODY, JAN) (Entered: 02/04/2020)

02/07/2020 222 BRIEF in Support of Plaintiff's Motion in Limine to Exclude Evidence of GTL's Companywide Profitability (jc, ) (Entered: 02/10/2020)

02/07/2020

223 MOTION in Limine as to Betty King's 30 Year Old Convictions by JOHN F. CROW, CRYSTAL GIBSON, BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY, MILAN SKLADANY. (jc, ) (Entered: 02/10/2020)

02/07/2020 224 BRIEF In Support of Plaintiff's Motion in Limine to Exclude Evidence Regarding Volunteer Doctrine (jc, ) (Entered: 02/10/2020)

02/07/2020 225 Omnibus BRIEF in Support of Defendants' Motions in Limine (Attachments: # 1 Order #1, # 2 Order #2, # 3 Order #3, # 4 Order #4, # 5 Order #5, # 6 Order #6, # 7 Order #7) (jc, ) (Entered: 02/10/2020)

02/07/2020

226 MOTION to Exclude the Expert Testimony of Michael Finneran by DSI-ITI LLC, GLOBAL TELLINK CORPORATION. (Attachments: # 1 Certification, # 2 Certification Exhibit 3 (Part 1), # 3 Certification Exhibit 3 (Part 2), # 4 Text of Proposed Order, # 5 Certificate of Service) (jc, ) (Entered: 02/10/2020)

02/07/2020

227 Exhibit to 226 MOTION to Exclude the Expert Testimony of Michael Finneran by DSI-ITI LLC, GLOBAL TELLINK CORPORATION. Exhibit #1 to Certification is main document. (Attachments: # 1 Exhibit #2 to Certification, # 2 Exhibit #4 to Certification, # 3 Exhibit #5 to Certification, # 4 Exhibit #6 to Certification, # 5 Exhibit #7 to Certification) (jc, )

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 02/10/2020)

02/07/2020 228 BRIEF in Support filed by DSI-ITI LLC, GLOBAL TELLINK CORPORATION re 226 MOTION to Exclude the Expert Testimony of Michael Finneran (Attachments: # 1 Brief (Part 2)) (jc, )

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 02/10/2020)

02/10/2020

Set/Reset Deadlines as to 223 MOTION in Limine. Motion set for 3/2/2020 before Judge William J. Martini. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (jc, ) (Entered: 02/10/2020)

02/10/2020

Set/Reset Deadlines as to 226 MOTION to Exclude the Expert Testimony of Michael Finneran. Motion set for 3/2/2020 before Judge William J. Martini. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (jc, ) (Entered: 02/10/2020)

02/11/2020

229 BRIEF in Support filed by DSI-ITI LLC, GLOBAL TELLINK CORPORATION re 212 MOTION for Judgment on the Pleadings (Reply Brief in Further Support) (VAN NOSTRAND, AARON)

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 02/11/2020)

02/11/2020 230 BRIEF in Support filed by DSI-ITI LLC, GLOBAL TELLINK CORPORATION re 216 MOTION Decertification of Class (Reply Brief in Further Support) (VAN NOSTRAND, AARON)

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 02/11/2020)

02/14/2020 231 BRIEF by Defendants' in Opposition to Plaintiff's Motion In Limine to Exclude Evidence Regarding the Volunteer Doctrine (ECF DKT # 224) (VAN NOSTRAND, AARON) (Entered: 02/14/2020)

02/14/2020

232 BRIEF by Defendants' GTL in opposition to Plaintiffs motion in limine to exclude evidence of GTLs companywide profitability (ECF DKT # 222) (Attachments: # 1 Certification, # 2 Exhibit)(VAN NOSTRAND, AARON)

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 02/14/2020)

02/14/2020

233 BRIEF in Opposition filed by BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY re 226 MOTION to Exclude the Expert Testimony of Michael Finneran (Attachments: # 1 Brief In Opposition To In Limine Motions, # 2 Declaration of Lindsey H. Taylor, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H)(TAYLOR, LINDSEY)

NOTICE TO COUNSEL: Counsel is advised that pursuant to Local Civil Rule 5.3(c)(2), a single, consolidated motion to seal shall be filed within 14 days following the completed briefing of the materials sought to be sealed, or within 14 days following the date on which the last of such materials was filed under temporary seal
if the motion is resolved, unless otherwise directed by the Court. (Entered: 02/14/2020)

02/17/2020 234 Letter from Defendants Global Tel*Link Corporation and DSI-ITI, requesting leave to file attached reply brief.. (Attachments: # 1 Brief)(VAN NOSTRAND, AARON) (Entered: 02/17/2020)

02/18/2020

235 Letter from James E. Cecchi Regarding GTL's Proposed Reply Brief re 234 Letter. (Attachments: # 1 D.C. Circuit Order In Securus v. FCC)(CECCHI, JAMES) (Entered: 02/18/2020)

02/18/2020 236 NOTICE of Appearance by MICHAEL A. NICODEMA on behalf of DSI-ITI LLC, GLOBAL TELLINK CORPORATION (NICODEMA, MICHAEL) (Entered: 02/18/2020)

02/20/2020

237 TEXT ORDER: The Court is in receipt of Defendants letter requesting leave to file a reply brief in support of their motion to exclude certain expert testimony, ECF No. 234, as well as Plaintiffs response thereto, ECF No. 235. The Court will consider the documents currently on the docket, including Defendants attached reply brief. ECF No. 234-1.

However, further submissions will not be considered absent extenuating circumstances. Requests for leave to submit additional materials are strongly discouraged. So Ordered by Judge William J. Martini on 2/20/20. (gh, ) (Entered: 02/20/2020)

02/20/2020

Minute Entry for proceedings held before Chief Mag. Judge Mark Falk: Final Pretrial Conference held on 2/20/2020. (CD #ECR.) (LM, ) (Entered: 02/25/2020)

02/24/2020

238 Proposed Jury Instructions by BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY. (CECCHI, JAMES) (Entered: 02/24/2020)

02/24/2020 239 Proposed Voir Dire by BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY. (CECCHI, JAMES) (Entered: 02/24/2020)

02/24/2020 240 TRIAL BRIEF On Behalf of Plaintiffs by BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY. (CECCHI, JAMES) (Entered: 02/24/2020)

02/24/2020

241 TRIAL BRIEF by DSI-ITI LLC, GLOBAL TELLINK CORPORATION. (VAN NOSTRAND, AARON) (Entered: 02/24/2020)

02/25/2020 242 MOTION to Seal by DSI-ITI LLC, GLOBAL TELLINK CORPORATION. (Attachments: # 1 Brief, # 2 Text of Proposed Order) (jc, ) (Entered: 02/26/2020)

02/28/2020

243 TEXT ORDER: There shall be an all-day settlement conference before the Undersigned on March 3, 2020 at 10:00 a.m. Parties shall be available by telephone. Given the short notice, the Court is flexible as to the preferred time of the conference. So Ordered by Chief Mag. Judge Mark Falk on 2/28/20. (LM, ) (Entered: 02/28/2020)

03/02/2020 244 OPINION. Signed by Judge William J. Martini on 3/2/20. (gh, ) (Entered: 03/02/2020)

03/02/2020 245 ORDER granting in part and denying in part 212 Motion for Judgment on the Pleadings. Signed by Judge William J. Martini on 3/2/20. (gh, ) (Entered: 03/02/2020)

03/03/2020

NOTICE: A Telephone Conference has been scheduled for Thursday, March 5, 2020 at 2PM before Judge William J. Martini. Counsel shall coordinate same. (gh, ) (Entered: 03/03/2020)

03/03/2020

Minute Entry for proceedings held before Chief Mag. Judge Mark Falk: Settlement Conference held on 3/3/2020. (Court Reporter/Recorder NONE.) (LM, ) (Entered: 03/03/2020)

03/05/2020 246 Minute Entry for proceedings held before Judge William J. Martini: Telephone Conference held on 3/5/2020 - Trial adjourned until 3/16/20 at 9:30 a.m. (gh, ) (Entered: 03/06/2020)

03/13/2020

NOTICE: In person Status Conference scheduled for Monday 3/16/20 t 9:30 has been converted to a Telephone Conference at 10:00 a.m. (gh, ) (Entered: 03/13/2020)

03/16/2020 247 Minute Entry for proceedings held before Judge William J. Martini: Telephone Conference held on 3/16/2020. (gh, ) (Entered: 03/16/2020)

04/15/2020

248 ORDER; granting 242 GTL's Motion to Seal; the documents filed provisionally under seal in the following docket entries in connection with the following motions are hereby sealed: (i) GTL's Motions for Judgment on the Pleadings (D.E. 214, 215, 220, 229), (ii) GTL's Motion for Class Decertification (D.E. 217, 220, 230) (iii) GTL's Motion to Exclude the Expert Testimony of Michael Finneran (D.E. 227, 228, 233), (iv) Plaintiffs' Motion In Limine to Exclude Evidence of GTL's Companywide Profitability (D.E. 232); etc. Signed by Chief Mag. Judge Mark Falk on 4/15/2020. (sms) (Entered: 04/15/2020)

05/19/2020 249 Minute Entry for proceedings held before Judge William J. Martini: Telephone Conference held on 5/19/2020. (gh, ) (Entered: 05/19/2020)

05/28/2020

250 MOTION Preliminary Approval of Settlement by BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY. (Attachments: # 1 Brief, # 2 Exhibit A (Settlement Agreement), # 3 Text of Proposed Order, # 4 Exhibit 1 (Proposed Long Form Notice), # 5 Exhibit 2 (Proposed Claim Form), # 6 Exhibit 3 (Proposed Short Form Notice))(CECCHI, JAMES) (Entered: 05/28/2020)

05/29/2020

Set/Reset Deadlines as to 250 MOTION Preliminary Approval of Settlement. Motion set for 7/6/2020 before Judge William J. Martini. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (jc, ) (Entered: 05/29/2020)

07/15/2020 251 ORDER granting 250 preliminary approval of the proposed settlement; authorizing dissemination of Notice of the settlement and scheduling a hearing for final approval of the proposed settlement for October 15,

2020 at 1PM. Signed by Judge William J. Martini on 7/15/20. (gh, ) (Entered: 07/15/2020)

09/18/2020

252 MOTION Final Approval of Settlement, Award of Attorney's Fees and Expenses, and Incentive Awards by BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY. (Attachments: # 1 Brief, # 2 Declaration of James E. Cecchi, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Declaration of James A. Plaisted, # 6 Exhibit 1, # 7 Exhibit 2, # 8 Declaration of Steven J. Giannoti, # 9 Exhibit A, # 10 Exhibit B, # 11 Exhibit C, # 12 Exhibit D)(CECCHI, JAMES) (Entered: 09/18/2020)

09/21/2020

Set/Reset Deadlines as to 252 MOTION Final Approval of Settlement, Award of Attorney's Fees and Expenses, and Incentive Awards. Motion set for 10/19/2020 before Judge William J. Martini. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (jc, ) (Entered: 09/21/2020)

09/21/2020

CLERK'S QUALITY CONTROL MESSAGE - A Proposed Order was not submitted with the 252 Motion for Final Approval of Settlement filed by James E. Cecchi on 9/18/20. PLEASE SUBMIT THE MISSING DOCUMENT(S) ONLY using the event Exhibit (to Document) and link back to the motion. (jc, ) (Entered: 09/21/2020)

09/21/2020

253 MOTION for Leave to Appear Pro Hac Vice by Benson Githieya, Darlene Byers, Nellie Lockett. (Attachments: # 1 Text of Proposed Order Admitting Michael Caplan, Esq. Pro Hac Vice)(CERIMELE, ERNESTO) (Entered: 09/21/2020)

09/21/2020

254 MOTION for Leave to Appear Pro Hac Vice by Darlene Byers, Benson Githieya, Nellie Lockett. (Attachments: # 1 Text of Proposed Order Admitting T. Brandon Waddell, Esq. Pro Hac Vice)(CERIMELE, ERNESTO) (Entered: 09/21/2020)

09/21/2020

255 MOTION to Intervene or Serve as Amicus Curiae by Darlene Byers, Benson Githieya, Nellie Lockett. (Attachments: # 1 Brief In Support of Motion to Intervene or Serve as Amicus, # 2 Exhibit Conditional Objection Attached as Exhibit A to Brief in Support of Motion to Intervene, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8)(CERIMELE, ERNESTO) (Entered: 09/21/2020)

09/21/2020

256 NOTICE by Darlene Byers, Benson Githieya, Nellie Lockett of Intent to appear for Fairness Hearing (CERIMELE, ERNESTO) (Entered: 09/21/2020)

09/22/2020

CLERK'S QUALITY CONTROL MESSAGE - The Fairness Hearing is scheduled for 10/15/20 at 1PM as previously ordered by the Court on 7/15/20. (gh, ) (Entered: 09/22/2020)

09/22/2020

Set/Reset Deadlines as to 255 MOTION to Intervene or Serve as Amicus Curiae. Motion set for 10/19/2020 before Judge William J. Martini. Unless otherwise directed by the Court, this motion will be decided on the papers and no appearances are required. Note that this is an automatically generated message from the Clerk`s Office and does not supersede any previous or subsequent orders from the Court. (jc, ) (Entered: 09/22/2020)

09/22/2020

CLERK'S QUALITY CONTROL MESSAGE - A Proposed Order was not submitted with the 255 MOTION to Intervene or Serve as Amicus Curiae filed by Ernesto Cerimele on 9/21/20. PLEASE SUBMIT THE MISSING DOCUMENT(S) ONLY using the event Exhibit (to Document) and link back to the motion. (jc, ) (Entered: 09/22/2020)

10/01/2020

257 TEXT ORDER: In a much as this Court scheduled a Fairness Hearing for October 15, 2020 on July 15, 2020 (ECF#251) the Court is expediting the filing of briefs in connection with the Motion to Intervene as follows: Opposition shall be filed by 10/2/20; any reply shall be filed by no later than 4PM on 10/6/20. So Ordered by Judge William J. Martini on 10/1/20. (gh, ) (Entered: 10/01/2020)

10/02/2020

258 TEXT ORDER- The applications for admission pro hac vice of Michael Caplan, Esq. and T. Brandon Waddell, Esq. appearing at entries nos. 253 and 254 fail to comply with Local Civil Rule 101.1. The movant shall supplement the applications to fully comply with the Rule, including providing certified statements of the applicants as specified in Local Civil Rule 101.1(c)(1). So Ordered by Chief Mag. Judge Mark Falk on 10/2/20. (Newman, Robin) (Entered: 10/02/2020)

10/02/2020

259 BRIEF in Opposition filed by DSI-ITI LLC, GLOBAL TELLINK CORPORATION re 255 MOTION to Intervene or Serve as Amicus Curiae or, in the Alternative, to Deny Movants' Objections (VAN NOSTRAND, AARON) (Entered: 10/02/2020)

10/02/2020

260 BRIEF in Opposition filed by BOBBIE JAMES, BETTY KING, BARBARA SKLADANY, MARK SKLADANY re 255 MOTION to Intervene or Serve as Amicus Curiae (CECCHI, JAMES) (Entered: 10/02/2020)

10/06/2020

261 REPLY to Response to Motion filed by Darlene Byers, Benson Githieya, Nellie Lockett re 255 MOTION to Intervene or Serve as Amicus Curiae (Attachments: # 1 Exhibit A - Transcript of Evidentiary Hearing)(CERIMELE, ERNESTO) (Entered: 10/06/2020)

10/06/2020 262 Certificate of Good Standing of PRO HAC Michael A. Caplan. (Attachments: # 1 Certification of Michael A. Caplan)(CERIMELE, ERNESTO) (Entered: 10/06/2020)

10/06/2020 263 Certificate of Good Standing of PRO HAC T. Brandon Waddell. (Attachments: # 1 Certification of T. Brandon Waddell)(CERIMELE, ERNESTO) (Entered: 10/06/2020)

10/07/2020

264 ORDER Admitting Michael A. Caplan, Esq. Pro Hac Vice, etc. Signed by Chief Mag. Judge Mark Falk on 10/7/20. (jc, ) (Entered: 10/07/2020)

10/07/2020 265 ORDER Admitting T. Brandon Waddell, Esq. Pro Hac Vice, etc. Signed by Chief Mag. Judge Mark Falk on 10/7/20. (jc, ) (Entered: 10/07/2020)

10/08/2020

NOTICE: The Court will conduct oral argument on the Motion to Intervene in advance of the Fairness Hearing at 12noon on October 15, 2020. All counsel shall appear via video-conferencing. (gh, ) (Entered: 10/08/2020)

10/08/2020

266 Letter from James E. Cecchi In Further Support of Final Approval of Settlement re 252 MOTION Final Approval of Settlement, Award of Attorney's Fees and Expenses, and Incentive Awards . (Attachments: # 1 Supplemental Declaration of Steven Giannotti, # 2 Text of Proposed Order)(CECCHI, JAMES) (Entered: 10/08/2020)

10/13/2020 267 Letter from James E. Cecchi Enclosing Corrected Final Approval Order re 266 Letter,. (Attachments: # 1 Text of Proposed Order)(CECCHI, JAMES) (Entered: 10/13/2020)

10/15/2020

268 Minute Entry for proceedings held before Judge William J. Martini: Motion Hearing held on 10/15/2020 re 252 MOTION Final Approval of Settlement, Award of Attorney's Fees and Expenses, and Incentive Awards filed by BETTY KING, MARK SKLADANY, BARBARA SKLADANY, BOBBIE JAMES, (GRANTED) 255 MOTION to Intervene (DENIED)or Serve as Amicus Curiae filed by Nellie Lockett, Benson Githieya, Darlene Byers, (Court Reporter/Recorder Walter Perelli.) (gh, ) (Entered: 10/15/2020)

10/22/2020 269 OPINION. Signed by Judge William J. Martini on 10/22/20. (gh, ) (Entered: 10/22/2020)

10/22/2020 270 ORDER granting 255 Motion to Intervene for the limited purpose of appearing amicus curiae. Signed by Judge William J. Martini on 10/22/20. (gh, ) (Entered: 10/22/2020)

10/22/2020 271 OPINION (Approving Settlement). Signed by Judge William J. Martini on 10/22/20. (gh, ) (Entered: 10/22/2020)

10/22/2020

272 ORDER granting 252 Final Approval of the Settlement; granting award of attorney fees and expenses; granting case contributions awards and approving plan of allocation. Signed by Judge William J. Martini on 10/22/20. (gh, ) (Entered: 10/22/2020)

10/22/2020

***Civil Case Terminated. (gh, ) (Entered: 10/22/2020)

PACER Service Center Transaction Receipt

10/29/2020 22:01:25

PACER Login:

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Description: Docket Report

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 James v. Global TelLink Corp, 852 F.3d 262 (2017)

852 F.3d 262 United States Court of Appeals, Third Circuit.
Bobbie JAMES, on behalf of themselves and all others similarly situated; Crystal Gibson, on behalf
of themselves and all others similarly situated; Betty King, on behalf of themselves and all others similarly situated; Barbara Skladany, on behalf of themselves and all others similarly situated; Mark Skladany, on behalf of themselves and all others similarly situated; Milan Skladany, on behalf of themselves and all others similarly situated; Dr.
John F. Crow, on behalf of themselves and all others similarly situated v.
GLOBAL TELLINK CORP; Inmate Telephone Service; DSI ITI LLC Global TelLink Corporation
and DSI-ITI LLC, Appellants
No. 16-1555 |
Submitted Under Third Circuit L.A.R. 34.1(a) November 3, 2016 |
(Filed: March 29, 2017)

*263 On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-13-cv-04989) District Judge: Honorable William J. Martini
Attorneys and Law Firms
James E. Cecchi, Esq., Lindsey H. Taylor, Esq., Carella, Byrne, Cecchi, Olstein, Brody & Agnello, 5 Becker Farm Road, Roseland, NJ 07068, James A. Plaisted, Esq., Lin C. Solomon, Esq., Pashman Stein Walder Hayden, 21 Main Street, Hackensack, NJ 07601, Counsel for Plaintiffs-Appellees
Robert J. Herrington, Esq., Greenberg Traurig, 1840 Century Park East, Suite 1900, Los Angeles, CA 90067, Philip R. Sellinger, Esq., Aaron Van Nostrand, Esq., Greenberg Traurig, 500 Campus Drive, Suite 400, Florham Park, NJ 07932, Counsel for Defendants-Appellants
Before: CHAGARES, HARDIMAN, and SCIRICA, Circuit Judges

Synopsis Background: Users of telecommunications services at prisons in New Jersey brought a putative class action against the provider of those services, alleging the provider’s charges were unconscionable and violated the New Jersey Consumer Fraud Act, the Takings Clause of the Fifth Amendment, and various New Jersey state laws. The United States District Court for the District of New Jersey, William J. Martini, J., 2016 WL 589676, denied the provider’s motion to compel arbitration. Provider appealed.
The Court of Appeals, Hardiman, Circuit Judge, held that users did not assent to provider’s terms of use or the arbitration provision contained therein.
Affirmed.
Procedural Posture(s): On Appeal.
1

OPINION OF THE COURT
HARDIMAN, Circuit Judge Global Tel*Link Corporation, Inmate Telephone Service, and DSI-ITI LLC (collectively, *264 GTL), appeal the District Court’s order denying their motion to compel arbitration against Bobbie James and other putative class action plaintiffs who used GTL’s prison phone services. The question presented is whether Appellees agreed to be bound by the terms of use contained on GTL’s website, even though they never visited it. Because the District Court properly held that Appellees did not agree to arbitrate, we will affirm.
I

James v. Global TelLink Corp, 852 F.3d 262 (2017)

GTL provides telecommunications services that enable inmates at state and local correctional facilities to call family, friends, attorneys, and other approved persons outside the prisons. GTL is the sole provider of these services in New Jersey. Users can sign up for an account and deposit funds either through GTL’s website or through an automated telephone service that uses an interactive voice-response system with standardized scripts and prompts.
People who create an account through the website are shown a copy of GTL’s terms of use and must click a button that says “Accept” to complete the process. Those who create an account by telephone receive the following audio notice:
Please note that your account, and any transactions you complete ... are governed by the terms of use and the privacy statement posted at www.offenderconnect.com. The terms of use and the privacy statement were most recently revised on July 3, 2013.

the case until either the FCC made a determination or Plaintiffs withdrew their claims arising under the FCA. Plaintiffs decided to withdraw their FCA claims.
GTL answered the complaint in November 2014 and filed an amended answer in March 2015, asserting as an affirmative defense that some of the Plaintiffs’ claims were subject to binding arbitration. GTL moved to compel arbitration five months later.
The District Court denied GTL’s motion to compel arbitration with respect to Plaintiffs who opened accounts by telephone.2 *265 The Court found that, although Plaintiffs were notified that GTL’s service was “governed by the terms of use,” they were not informed that “use of the service alone constituted an acceptance of these terms.” James v. Global Tel*Link Corp., 2016 WL 589676, at *7 (D.N.J. Feb. 11, 2016). They therefore “had neither the knowledge nor intent necessary to provide ‘unqualified acceptance.’ ” Id. (citation omitted). “Consequently, without an understanding that they were accepting to be bound by the [terms of use], which included an agreement to arbitrate, there was no ‘legally enforceable contract’ created between GTL and the Plaintiffs.” Id. GTL filed this timely appeal.

App. 125. Unlike web users, those who set up accounts by telephone are not required to indicate their assent to the terms of use.
GTL’s terms of use contain an arbitration agreement and a class-action waiver, and users have 30 days to opt out of both of these provisions. They also state that using the telephone service or clicking the “Accept” button on the website constitutes acceptance of the terms, and users have 30 days to cancel their accounts if they do not agree to the terms.
Plaintiffs in this case are inmates and their relatives or friends who used GTL’s services. Four of them opened accounts by telephone, and one opened an account through GTL’s website.1 In August 2013, Plaintiffs filed a putative class action alleging that GTL’s charges were unconscionable. They alleged violations of the New Jersey Consumer Fraud Act, the Federal Communications Act (FCA), the Takings Clause of the Fifth Amendment, and various New Jersey state laws. GTL moved to dismiss or stay the matter, arguing that the Federal Communications Commission (FCC) had primary jurisdiction. In September 2014, the District Court stayed
2

II
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1332(d). We have jurisdiction to review the District Court’s order denying GTL’s motion to compel arbitration under the Federal Arbitration Act (FAA), 9 U.S.C. § 16(a)(1)(B). “We exercise plenary review over questions regarding the validity and enforceability of an agreement to arbitrate.” Puleo v. Chase Bank USA, N.A., 605 F.3d 172, 177 (3d Cir. 2010) (en banc).
III
The FAA requires district courts to stay judicial proceedings and compel arbitration of claims covered by a written and enforceable arbitration agreement. 9 U.S.C. § 3. Thus, the first question is whether a valid arbitration

James v. Global TelLink Corp, 852 F.3d 262 (2017)
agreement exists. Id. § 4. “Arbitration is a matter of contract between the parties and a judicial mandate to arbitrate must be predicated upon an agreement to that effect.” Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, 54 (3d Cir. 1980). “[T]he FAA does not require parties to arbitrate when they have not agreed to do so.” Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989).

be manifested by silence or inaction.” Restatement (Second) of Contracts § 69 (1981). New Jersey law also recognizes that contract terms may be incorporated by reference. “In order for there to be a proper and enforceable incorporation by reference of a separate document ... the party to be bound by the terms must have had knowledge of and assented to the incorporated terms.” Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J.Super. 510, 983 A.2d 604, 617 (2009) (internal quotation marks and citation omitted).

A
To determine whether a valid arbitration agreement exists, we “apply ordinary state-law principles that govern the formation of contracts.” First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Here, the District Court held that New Jersey law governs the question of contract formation, and the parties have not challenged that determination.
Under New Jersey law, “[a]n agreement to arbitrate, like any other contract, must be the product of mutual assent, as determined under customary principles of contract law.” Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 99 A.3d 306, 312–13 (2014) (internal quotation marks and citation omitted), cert. denied, ––– U.S. ––––, 135 S.Ct. 2804, 192 L.Ed.2d 847 (2015). “Mutual assent requires that the parties have an understanding of the terms to which they have agreed.” Id. at 313. As the New Jersey Supreme Court explained, this principle is especially important in arbitration cases. “[B]ecause arbitration involves a waiver of the right to pursue a case in a judicial forum, courts take particular care in assuring the knowing assent of both parties to arbitrate, and a clear mutual understanding of the ramifications of that assent.” Id. (internal quotation marks and citation omitted).
To manifest assent, an offeree must provide “unqualified acceptance,” which can be express or implied by conduct. *266 Weichert Co. Realtors v. Ryan, 128 N.J. 427, 608 A.2d 280, 284 (N.J. 1992) (citing Restatement (Second) of Contracts § 19(1) (1981)). “Silence does not ordinarily manifest assent, but the relationships between the parties or other circumstances may justify the offeror’s expecting a reply and, therefore, assuming that silence indicates assent to the proposal.” Id. Nevertheless, the offeror must “give[ ] the offeree reason to understand that assent may
3

B
The parties have not cited and we are unaware of any decisions that address the issue of contract formation through an interactive voice-response telephone system. In this case, GTL informed telephone users each time they set up or deposited funds in their accounts that its service was governed by terms of use available on its website. However, users were not required to visit the website or demonstrate acceptance of the terms of use through any affirmative act. Nor were they notified by the automated telephone service that their use of GTL’s service would constitute assent to the terms of use.
GTL argues that Appellees manifested assent by using its services after being repeatedly informed that their accounts were governed by its terms of use. In support of its argument, GTL relies on several cases finding assent to contract terms through use of a product or service. But in those cases, the purchasers manifested assent through the affirmative act of signing contracts that contained arbitration provisions. See, e.g., Raynor v. Verizon Wireless (VAW), LLC, 2016 WL 1626020, at *3–4 (D.N.J. Apr. 25, 2016) (enforcing arbitration agreement where customer physically signed agreement containing arbitration clause and activated cell phone service); Curtis v. Cellco P’ship, 413 N.J.Super. 26, 992 A.2d 795, 797–800 (2010) (enforcing arbitration agreement where customer electronically signed agreement containing arbitration clause before activating wireless phone service plan). Unlike those cases, Appellees here never signed anything when they opened their accounts or deposited money, let alone an agreement containing an arbitration provision.
GTL also relies on a number of cases in which consumers

James v. Global TelLink Corp, 852 F.3d 262 (2017)
purchased goods or services online and were found to have assented to the terms and conditions available by hyperlink. See, e.g., Snap-on Bus. Sols. Inc. v. O’Neil & Assocs., 708 F.Supp.2d 669, 683 (N.D. Ohio 2010); PDC Labs. v. Hach Co., 2009 WL 2605270, at *3 (C.D. Ill. Aug. 25, 2009); Hubbert v. Dell Corp., 359 Ill.App.3d 976, 296 Ill.Dec. 258, 835 N.E.2d 113, 121–22 (2005). In each of those cases, the terms and conditions were immediately accessible to online users. By contrast, the transactions between GTL and Appellees occurred entirely through an automated telephone system, a medium that adverted to the terms of use without stating them. To access the terms of use, Appellees would have needed to connect to the internet, visit GTL’s website, and then click on a hyperlink. No Appellee took those extra steps.
*267 GTL’s reliance on Carnival Cruise Lines v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991), is likewise misplaced. There, the Supreme Court held that a forum-selection clause printed on a cruise ticket was valid and enforceable. Id. at 594–95, 111 S.Ct. 1522. In contrast to this appeal, plaintiffs in Carnival Cruise received a copy of the contract with their tickets and conceded that they had notice of the forum-selection clause before contracting for passage. Id. at 590, 111 S.Ct. 1522. Here, Appellees were never presented with the terms available on GTL’s website and therefore were unaware of the arbitration provision contained therein.
GTL also relies on decisions enforcing contract terms that consumers do not receive until after completing their purchases. These are known as “shrinkwrap-license” cases because of the plastic that is used to seal products such as computer software. See Schnabel v. Trilegiant Corp., 697 F.3d 110, 121 & n.10 (2d Cir. 2012). In these cases, the license terms are typically provided inside the packaging, and consumers are deemed to accept those terms by opening or using the products. Id. at 122. Unlike this appeal, however, the consumers in the shrinkwrap-license cases received physical copies of the terms and conditions upon opening the products, and their subsequent use of the products manifested assent to the enclosed terms. See, e.g., ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) (holding that terms inside a software box bind consumers who use the software after an opportunity to read the terms and reject them by returning the product).
4

C
This appeal presents an unusual hybrid of technology—offering services via one medium (an interactive telephone voice-response system) and purporting to bind users of those services to terms that are accessible only through a different medium (the internet). Because of the technology involved, particularly the internet, the District Court analogized GTL’s method of notice and assent to that used in online “browsewrap” agreements. See James, 2016 WL 589676, at *5. In browsewrap agreements, a company’s terms and conditions are generally posted on a website via hyperlink at the bottom of the screen. Unlike online agreements where users must click on an acceptance after being presented with terms and conditions (known as “clickwrap” agreements), browsewrap agreements do not require users to expressly manifest assent. See Nicosia v. Amazon.com, Inc., 834 F.3d 220, 233 (2d Cir. 2016).
There is an evolving body of caselaw regarding whether the terms and conditions in browsewrap agreements are enforceable, often turning on whether the terms or a hyperlink to the terms are reasonably conspicuous on the webpage. See, e.g., id.; Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 (9th Cir. 2014); Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 30–32 (2d Cir. 2002); Hoffman v. Supplements Togo Mgmt., LLC, 419 N.J.Super. 596, 18 A.3d 210, 218–20 (2011). When terms are linked in obscure sections of a webpage that users are unlikely to see, courts have refused to find constructive notice. See Nicosia, 834 F.3d at 233; Specht, 306 F.3d at 30–32. On the other hand, “where the website contains an explicit textual notice that continued use will act as a manifestation of the user’s intent to be bound, courts have been more amenable to enforcing browsewrap agreements.” Nguyen, 763 F.3d at 1177.
Here we need not consider the particular design and content of GTL’s website because Appellees’ transaction with GTL occurred over the telephone. They neither *268 received GTL’s terms of use, nor were they informed that merely using GTL’s telephone service would constitute assent to those terms.3 Under these circumstances, Appellees did not assent to the terms of use or the arbitration provision contained therein. See, e.g., Schnabel, 697 F.3d at 127 (finding no assent where arbitration provision “was both temporally and spatially decoupled from the plaintiffs’ enrollment in and use of” the service). Accordingly, the District Court properly held that Appellees cannot be required to arbitrate their claims. See Par-Knit Mills, 636 F.2d at 54 (“Before a party to a

James v. Global TelLink Corp, 852 F.3d 262 (2017)

lawsuit can be ordered to arbitrate and thus be deprived of a day in court, there should be an express, unequivocal agreement to that effect.”).
* * *

their words or deeds, agree to arbitrate their dispute with GTL. For that reason, we will affirm the order of the District Court denying GTL’s motion to compel arbitration.

Congress has made clear that arbitration is an important

All Citations

federal policy and the Supreme Court has vindicated that policy many times. Yet it remains axiomatic that a party

852 F.3d 262

cannot be required to arbitrate without its assent. On the

facts as pleaded in this case, Appellees did not, through

Footnotes

1

Bobbie James, Betty King, Barbara Skladany, and Milan Skladany opened accounts by telephone, and Crystal Gibson

opened an account through the website. It is unclear how John Crow and Mark Skladany opened accounts.

2

The Court granted the motion with respect to plaintiff Crystal Gibson, who opened her account online. Gibson was

required to arbitrate her claims because she was presented with all the terms of use on the computer screen,

including the arbitration provision, and provided her assent by clicking the “Accept” button.

3

As GTL points out and the District Court recognized, the company’s terms of use do state that using the telephone

service would constitute acceptance of those terms. But those terms were neither conspicuous nor readily

accessible by Appellees, and we cannot say that by their actions they manifested assent to terms contained on a

website they never visited. See Nguyen, 763 F.3d at 1179 (“Given the breadth of the range of technological savvy of

online purchasers, consumers cannot be expected to ferret out hyperlinks to terms and conditions to which they

have no reason to suspect they will be bound.”).

5

 
 Case 2:13-cv-04989-WJM-MF Document 250-2 Filed 05/28/20 Page 1 of 41 PageID: 6239
Exhibit A

Case 2:13-cv-04989-WJM-MF Document 250-2 Filed 05/28/20 Page 2 of 41 PageID: 6240

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

BOBBIE JAMES, et al. on behalf of themselves Civil Action No. 13-4989 (WJM)(MF) and all others similarly situated,

Plaintiffs v.
GLOBAL TEL*LINK CORPORATION, INMATE TELEPHONE SERVICE, and DSI-ITI LLC,
Defendants.

SETTLEMENT AGREEMENT

THIS SETTLEMENT AGREEMENT is made and entered into as of the 28th day of May, 2020 by and between on the one hand: Plaintiffs Bobbie James, Betty King, Mark Skladany and Barbary Skladany (collectively, “Class Plaintiffs”), individually and on behalf of the Class defined below; and on the other hand Defendants Global Tel*Link Corporation and DSI-ITI, Inc. (f/k/a DSI-ITI, LLC) (together “GTL” or “Defendants”). The Class Plaintiffs, the Class, and GTL are referred to collectively as the “Parties” and individually as a “Party.” 1
WHEREAS Plaintiffs filed this Action on August 20, 2013, alleging, inter alia, that Defendants violated the Federal Communications Act, New Jersey Consumer Fraud Act and associated regulations, New Jersey public utilities statutes and the Fifth Amendment’s takings clause and that Defendants were unjustly enriched by charging excessive rates and fees in providing Inmate Calling Service (“ICS”) to New Jersey State and county correctional institutions; and
WHEREAS on November 22, 2013, GTL moved to dismiss Plaintiffs’ complaint pursuant to Fed. R. Civ. P. 12(b)(6) (Docket Entry 20); and

1

All terms with initial capitalization shall have the meanings set forth in Section 1 below

or as otherwise defined herein.

Case 2:13-cv-04989-WJM-MF Document 250-2 Filed 05/28/20 Page 3 of 41 PageID: 6241
WHEREAS on September 8, 2014, the Court denied GTL’s motion to dismiss but stayed the action pending action by the Federal Communications Commission relating the whether the actions challenged by Plaintiffs in the complaint violated the Federal Communications Act (Docket Entry 36); and
WHEREAS Plaintiffs voluntarily dismissed their claims relating to violation of the Federal Communications Act and New Jersey public utilities statutes on October 20, 2014, and the Court lifted the stay imposed after its motion to dismiss decision (Docket Entry 41); and
WHEREAS on June 16, 2015, GTL filed a motion before the Judicial Panel for Multidistrict Litigation to consolidate this case with other cases that were then pending against GTL in the Western District of Arkansas and the Eastern District of Pennsylvania, which motion was denied by way of Order dated October 13, 2015 (JPML No. 2651, Docket Entry 23); and
WHEREAS on August 7, 2015, GTL filed a motion to compel individual arbitration (Docket Entries 95, 99, 100, 103), which motion was granted as to as to Plaintiff Crystal Gibson, but was denied as to the other named plaintiffs (Docket Entries 116, 117); and
WHEREAS on March 9, 2016, GTL appealed the denial of its motion to compel arbitration to the Third Circuit (Docket Entry 120); and
WHEREAS on March 29, 2017, the Third Circuit affirmed the District Court’s arbitration decision, James v. Global Tellink Corp., 852 F.3d 262 (3d Cir. 2017); and
WHERAS, the Court entered a revised scheduling order on July 20, 2017 setting a schedule for expert discovery and Plaintiffs’ motion for class certification (Docket Entry 136); and
2

Case 2:13-cv-04989-WJM-MF Document 250-2 Filed 05/28/20 Page 4 of 41 PageID: 6242
WHEREAS, the parties exchanged their class certification papers in accordance with former Appendix N, and those papers were filed on February 27, 2018 (Docket Entries 147-154); and
WHEREAS on March 27, 2018, GTL filed a motion for summary judgment (Docket Entries 158, 159, 164, 165, 173); and
WHEREAS on August 6, 2018, the Court granted Plaintiffs’ motion for class certification and denied GTL’s motion for summary judgment (Docket Entries 179-182); and
WHEREAS on August 20, 2018, GTL filed a petition for permission to appeal with the Third Circuit as to the granting of class certification pursuant to Fed. R. Civ. P. 23(f), which petition was denied by way of Order dated January 24, 2019; and
WHEREAS on April 1, 2019, the Parties held a mediation session before Hon. Stephen M. Orlofsky (ret.);
WHEREAS, the Court approved a notice plan to the Class by way of Order dated June 10, 2019 (Docket Entry 198), and notice was sent to the Class in due course (Docket Entry 199); and
WHEREAS on October 22, 2019, the Court set a trial date for March 9, 2020 (Docket Entry 202); and
WHEREAS on January 24, 2020, GTL filed motions for judgment on the pleadings and to decertify the class (Docket Entries 212 & 216); and
WHEREAS on February 13, 2020, the Parties held a mediation session with Hon. Dennis M. Cavanaugh (ret.); and
WHEREAS the Court held a Final Pretrial Conference on February 20, 2020; and
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WHEREAS on March 2, 2020, the Court granted GTL’s motion for judgment on the pleadings with respect to Plaintiffs’ claim under the takings clause of the Fifth Amendment of the United States Constitution, but otherwise denied GTL’s motion, and found that there were issues of fact as to the application of GTL’s derivative immunity defense; and
WHEREAS on March 3, 2020, the Parties appeared for a settlement conference before Hon. Mark Falk, at which time the parties reached an agreement in principle on the maximum benefits to be made available by GTL to the Class as part of a settlement of all claims; and
WHEREAS on March 4, 2020, the Parties reached an agreement in principle on the maximum attorneys’ fees and costs to be paid by GTL to Plaintiffs’ Counsel and the Case Contribution Awards to the Class Plaintiffs;
WHEREAS on March 5, 2020, Hon. William J. Martini adjourned the March 9, 2020 trial date;
WHEREAS, Plaintiffs’ Counsel have been appointed by the Court to represent the Class; WHEREAS, the Parties wish to resolve all claims asserted and all claims that could have been asserted in the Action by the Class against the GTL Released Parties; WHEREAS, counsel for the Parties have engaged in arm’s-length negotiations on the terms of this Agreement, as defined below, with the assistance of the Honorable Stephen M. Orlofsky, U.S.D.J. (Ret.), the Honorable Dennis M. Cavanaugh, U.S.D.J. (ret.) and the Honorable Mark Falk, Chief U.S.M.J. in reaching this Agreement and this Agreement embodies all of the terms and conditions of the Settlement; WHEREAS, the Parties’ negotiation of an agreement regarding the award of Plaintiffs’ Counsel’s attorneys’ fees and costs and the Case Contribution Awards to the Class Plaintiffs did
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not occur until after the substantive terms of this Agreement had been negotiated and agreed upon; and
WHEREAS, Class Plaintiffs have concluded, after discovery and investigation of the facts and after considering the circumstances of the Action and the applicable law, that it is in the best interests of Class Plaintiffs to enter into this Agreement with GTL to avoid the uncertainties of further complex litigation, and to obtain the benefits described herein for the Class and Class Members, and, further, that this Settlement (as defined below) is fair, reasonable, adequate, and in the best interests of the Class;
WHEREAS, GTL, without admitting any liability or wrongdoing, wishes to avoid the costs, expenses, and uncertainties of trial and continuing this complex litigation;
WHEREAS, the Parties, and their respective counsel, believe that the terms of the settlement set forth in this Agreement provide fair, reasonable, and adequate consideration for the release of the claims in this action as well as release of all Released Claims; and
WHEREAS, the Parties desire and intend to seek approval by the District Court of the settlement as set forth in this Agreement;
NOW THEREFORE, in consideration of the foregoing, the terms and conditions set forth below, and other good and valuable consideration, it is agreed by and among the Parties that the Class Members’ claims be settled and compromised, and dismissed on the merits with prejudice as to the Released Parties, subject to Court approval:
1. Definitions: The following terms shall have the following meanings for purposes of this Agreement.
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a. “Action” means the class action captioned James, et. al v. Global Tel*Link Corporation, et al., Civil Action No. 13-4989 (WJM)(MF) pending in the United States District Court for the District of New Jersey.
b. “Agreement” means this Settlement Agreement Between Class Plaintiffs and GTL.
c. “Case Contribution Award” means compensation for Class Plaintiffs for their time and effort undertaken in the Action.
d. “Call” means a telephone call made using GTL’s services by or to communicate with a person incarcerated in New Jersey that was paid for via AdvancePay, via debit account, via calling card, or as a collect call.
e. “Class” means: All persons of the United States who, between 2006 and 2016, were incarcerated in a New Jersey prison or correctional institution and who used the phone system provided by Defendants, or who established an AdvancePay account with Defendants in order to receive telephone calls from a person incarcerated in New Jersey, excluding Essex County prior to June 2010, or persons receiving calls from persons incarcerated in Essex County prior to June 2011.
Excluded from the Class are 1) any Class Members who timely and validly elect to be excluded from the Class in accordance with the Preliminary Approval Order, 2) any Class Members who previously excluded themselves from the Class (together, the “OptOuts”); 3) any GTL customer who set up payment by direct bill; and 4) Defendants and their respective parents, subsidiaries, and affiliates.
f. “Class Member” means any person who falls within the definition of the Class.
g. “Class Period” means January 1, 2006 through December 31, 2016.
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h. “Court” means the United States District Court for the District of New

Jersey.

i.

“Defendants” means Global Tel*Link Corporation and DSI-ITI, Inc. (f/k/a

DSI-ITI, LLC).

j.

“Emailed Class Notice” means the individual notice of this Settlement to

be e-mailed by the Settlement Administrator, at the direction of Counsel for the Parties,

to Class Members using the list of email addresses previously generated by the

Settlement Administrator pursuant to the Court approved a notice plan set forth in the

Order dated June 10, 2019 (Docket Entry 198).

k. “Escrow Account” means the escrow account established to receive and

maintain funds contributed on behalf of GTL or the benefit of the Class, including Class

Plaintiffs and Class Members.

l.

“Execution Date” means the first date on which all counsel to the Parties

to this Agreement have signed the Agreement.

m. “Final Approval” means an order and judgment by the Court that finally

approves this Agreement and the Settlement pursuant to Federal Rule of Civil Procedure

23 and dismisses the Action with prejudice Defendants.

n. “Final Judgment” means the first date upon which both of the following

conditions shall have been satisfied:

i. Final Approval; and

ii. Either (1) thirty (30) days have passed from the date of Final

Approval with no notice of appeal having been filed with the Court; or (2) Final

Approval has been affirmed by a mandate issued by any reviewing court to which

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any appeal has been taken, and any further petition for review (including certiorari) has been denied, and the time for any further appeal or review of Final Approval has expired. o. “Plaintiffs’ Counsel” means James E. Cecchi of Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P.C., and James A. Plaisted of Pashman Stein Walder Hayden as appointed by the Court to represent the Class. p. “Mailed Class Notice” means the individual notice of this Settlement to be mailed by the Settlement Administrator, at the direction of Counsel for the Parties, to Class Members using the list of mailing addresses previously generated by the Settlement Administrator pursuant to the Court approved a notice plan set forth in the Order dated June 10, 2019 (Docket Entry 198). q. “Notice and Administrative Costs” means the reasonable and authorized costs and expenses of disseminating and publishing the Mailed Class Notice and Published Class Notice, and all reasonable and authorized costs and expenses incurred by the Settlement Administrator in administering the Settlement, including but not limited to costs and expenses associated with assisting members of the Class, processing claims, escrowing funds, and issuing and mailing payments. r. “Notice Date” means the date that Mailed Class Notice is sent to the Class in accordance with Section 5. s. “Preliminary Approval Order” means an order by the Court to preliminarily approve this Agreement and the Settlement pursuant to Federal Rule of Civil Procedure 23.
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t.

“Published Class Notice” means the summary of the Mailed Class Notice

submitted to the Court for approval in connection with the motion for Preliminary

Approval.

u. “Released Claims” means any and all claims that were brought or could

have been brought in the Action relating to the provision of Defendants’ services for calls

originating from prisons, jails or other correctional institutions in New Jersey during the

Class Period, including without limitation the rates or fees for or related to such services.

v. “Released Parties” shall refer individually and collectively, as appropriate,

to Global Tel*Link Corporation and DSI-ITI LLC and all of their past and present parent

companies, subsidiaries, joint ventures, partnerships, affiliates, controlled entities,

assignees, and all of their respective predecessors, assigns, and successors-in-interest, and

all of their respective present or former directors, officers, members, shareholders, agents,

employees, representatives, administrators, insurers, and indemnitees.

w. “Releasing Party” or “Releasing Parties” shall refer individually and

collectively, to the Class, including the Class Plaintiffs and the Class Members, each on

behalf of themselves and their respective predecessors and successors; their current and

former, direct and indirect parents, subsidiaries and affiliates; their present and former

shareholders, partners, directors, officers, owners of any kind, principals, members,

agents, employees, contractors, attorneys, insurers, heirs, executors, administrators,

devisees, representatives; their assigns of all such persons or entities, as well as any

person or entity acting on behalf of or through any of them in any capacity whatsoever,

jointly and severally; and any of their past, present and future agents, officials acting in

their official capacities, legal representatives, agencies, departments, commissions and

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divisions. As used in this Section, “affiliates” means entities controlling, controlled by or under common ownership or control with, in whole or in part, any of the Releasing Parties.
x. “Settlement” means the settlement of the Class Action and any claims filed by Class Members with respect to any of the Released Parties, as set forth in this Agreement.
y. “Settlement Administrator” means Angeion Group LLC, the firm retained to disseminate the Class Notice and administer the Settlement, subject to approval of the Court. The Settlement Administrator shall administer the Settlement in accordance with the terms of this Agreement and, without limiting the foregoing, shall treat any and all documents, communications and other information and materials received in connection with the administration of the Settlement as confidential and shall not disclose any or all such documents, communications, or other information to any person or entity except as provided in this Agreement or court order.
z. “Settlement Payments” means the payments made by GTL pursuant to this Agreement, including any interest accrued on such payments. 2. The Parties’ Efforts to Effectuate this Settlement. The Parties agree to support entry of Final Approval, motion for re-argument, motion for rehearing, petition for a writ of certiorari or other writ or objection. 3. Non-Admission Of Liability. This Agreement is made for settlement purposes only, and neither the fact of, nor any specific provision contained in this Agreement nor any action taken hereunder shall constitute, or be construed as, any admission of the validity of any claim or any fact alleged by Plaintiffs or by any other person included within the Class of any
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wrongdoing, fault, violation of law, or liability of any kind on the part of the Released Parties. GTL denies that it has engaged in any wrongdoing or unconscionable practice regarding the rates and fees charged for ICS in New Jersey, or that it has engaged in any other unlawful conduct as alleged in the Complaint. This Agreement constitutes a compromise pursuant to Fed. R. Evid. 408(a) and all similar federal or state laws, rights, rules, or legal principles of any other jurisdiction that may be applicable. It shall not be offered or be admissible, either in whole or in part, as evidence against any of the Released Parties, except in any action or proceeding to enforce its terms.
4. Settlement Announcement and Litigation Standstill. Upon execution of this Agreement, the Parties shall inform the Court that the Parties have executed this Agreement. Upon execution of this Agreement, the Class Plaintiffs and the Class, through Plaintiffs’ Counsel, shall cease all litigation activities related to the pursuit of claims against the Released Parties in the Action (except as permitted in Section 13 of this Agreement) (the “Litigation Standstill”).
5. Motions for Preliminary Approval. a. As soon as practicable, and in no event later than thirty (30) days after the
Execution Date, unless otherwise extended by written agreement of the Parties, Class Plaintiffs, through Plaintiffs’ Counsel, shall submit to the Court a motion for Preliminary Approval of this Agreement. The Preliminary Approval motion shall include: (a) a proposed form of, method for, and date of dissemination of notice; (b) a proposed schedule for the filing of any motion for fees and expenses, the filing of a motion to approve finally this Agreement, and a final fairness hearing; and (c) a proposed form of order preliminarily approving this Agreement. The motion (and its exhibits) seeking
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Preliminary Approval, including the text of the items referred to in clauses (a) through (c) above shall be proposed by Class Plaintiffs, through Plaintiffs’ Counsel, subject to the agreement of GTL, which agreement shall not be unreasonably withheld. The Parties shall take all reasonable actions as may be necessary to obtain Preliminary Approval of this Agreement. Plaintiffs shall provide a copy of the Motion for Preliminary Approval to GTL for its review no later than five (5) days before the date of filing.
b. In connection with the Motion for Preliminary Approval, Plaintiffs shall apply for an order requesting:
i. Preliminary approval of this Agreement; ii. Approval of the notices proposed in this Agreement; iii. The setting of a date for Notice to be provided to the Class Members; iv. The setting of a deadline for exclusions and objections; and v. The setting of a date for the Final Fairness Hearing. 6. Class Notices. After Preliminary Approval, and subject to approval by the Court of the means for dissemination: a. No later than twenty-one (21) days after the entry of the Order of Preliminary Approval (unless otherwise specifically modified below), the Mailed Class Notice shall be mailed and the Emailed Class Notice shall be emailed by the Settlement Administrator, at the direction of Counsel for the Parties, to Class Members that: are identified by or were previously identified from GTL’s records during the process of disseminating notice of certification of the Class. Any questions relating to notice
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provided to individual members of the Class shall be directed to the Settlement Administrator, which shall answer questions raised by GTL.
b. Claim forms may also be included with the Class Notice sent to Class Members.
c. The Published Class Notice shall be submitted to the Court for approval in connection with the motion for Preliminary Approval to be published in a one-sixth (1/6) page size advertisement in the Star Ledger, the South Jersey Times and the Prison Legal News on two occasions:
d. The Parties agree that the methods of Notice set forth in this Section constitute the best form of Notice to the Class that is practicable under the circumstances. All Notice and Administrative Costs will be paid out by GTL separate and apart from, and in addition to, the Settlement Payments.
e. The Settlement Administrator shall prepare declaration(s) stating that the Notice was provided to Class members in accordance with the terms of this Agreement and any Court Order, along with the number of Notices which were mailed to the Class Members; the number of Notices which were successfully mailed; the number of Notices which were returned as undeliverable as addressed (hereinafter “UAA”); and the number of UAA Notices which were re-sent to Class Members; and the number of UAA which were re-sent successfully. The Settlement Administrator shall provide Plaintiffs’ Counsel with the originals of the declarations, with copies to GTL, so that the declarations may be filed with the Court.
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f. The Settlement Administrator shall establish and maintain a Settlement

Website from the date of the entry of the Order of Preliminary Approval until the

conclusion of the claim period.

g. The Settlement Administrator shall be designated in the Notice to Class

Members as the entity to contact if Class Members choose to exclude themselves from

the settlement.

h. The Settlement Administrator shall also prepare declaration(s) stating the

total number of, and identify by name and address, any Class Members who the

Settlement Administrator determines to have submitted a valid and timely Request for

Exclusion and the total number of any Class Members who the Settlement Administrator

determines to have submitted an untimely Request for Exclusion. The Settlement

Administrator shall provide Plaintiffs’ Counsel with the original of the declaration(s),

with copies to GTL, by no later than ten (10) days after the opt-out date as set forth

herein below, so that the declaration(s) may be filed with the Court.

i.

The Settlement Administrator shall also be designated in the Notice to

Class Members as the entity to contact (via mail, electronic mail and/or telephone) if they

have any questions concerning the Notice or the settlement.

7. Motion for Final Approval and Entry of Final Judgment. If the Court grants

Preliminary Approval of this Agreement, Class Plaintiffs, through Plaintiffs’ Counsel, shall, in

accordance with the schedule set forth in the Court’s Preliminary Approval Order, submit to the

Court a separate motion for Final Approval of this Agreement by the Court. The motion for

Final Approval shall seek entry of an order and Final Judgment:

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a. Finally approving the Settlement as being a fair, reasonable, and adequate settlement for the Class within the meaning of Federal Rules of Civil Procedure 23, and directing the implementation, performance and consummation of the Settlement pursuant to the terms and conditions set forth in this Agreement;
b. Dismissing the Action with prejudice; c. Dismissing all claims against the non-existing corporate entity “Inmate Telephone Service” with prejudice. d. Ordering the Class Plaintiffs and Class Members to discharge the Released Parties of and from all further liability to Plaintiffs and Class Members with respect to the Released Claims (but not as to any obligations created or owed pursuant to this Agreement); e. Permanently barring and enjoining Class Plaintiffs and Class Members from bringing, filing, commencing, prosecuting (or further prosecuting), or intervening in, any other lawsuit, arbitration, or administrative, regulatory or other proceeding or cause of action in law or equity that asserts the Released Claims or receiving any settlement consideration in any other lawsuit, arbitration, or administrative, regulatory or other proceeding or cause of action in law or equity based on the Released Claims f. Reserving continuing and exclusive jurisdiction over the Settlement for all purposes; and g. Determining under Fed. R. Civ. P. 54(b) that there is no just reason for delay and directing that the judgment of dismissal as to the Released Parties shall be final and appealable and entered forthwith. The Parties shall take all reasonable steps to obtain Final Approval of the Settlement.
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8. Settlement Consideration. Subject to the approval hereof, and in consideration of the release of Released Claims, GTL agrees to pay, on behalf of itself and the Released Parties, a maximum of U.S. $25 million in cash and credits combined (the “Settlement Payments”) to be distributed in accordance with the Plan of Allocation, as defined in Section 14 below. GTL shall make no additional payments to the Class under this Settlement. The Parties agree and acknowledge that none of the foregoing amounts paid by or on behalf of GTL under this Agreement shall be deemed to be, in any way, a penalty or a fine of any kind, nor shall it be deemed or construed to be an admission or evidence of any violation of any statute or law or of any liability or wrongdoing by the Released Parties.
9. Cooperation With Settlement Process. The Parties agree to undertake their respective best efforts to effectuate the Settlement as set forth in this Agreement. The Parties shall encourage the Court to approve the Agreement, and shall not encourage persons included within the Class to object to the Court’s approval of the Agreement or to opt out of the Class. Except for the cooperation enumerated in this Section 9, all litigation activities related to the pursuit of claims by Class Plaintiffs and the Class Members against Released Parties in the Action are subject to the Litigation Standstill set forth in Section 4. The Released Parties shall have no cooperation obligation except those related to the settlement process as expressly set forth in this Section 9. None of the cooperation provisions is intended to, nor do they, waive any otherwise applicable privilege.
a. Preliminary Approval. The Parties agree to cooperate to the extent reasonably necessary in connection with Plaintiffs’ Counsel’s preparation of the motion for Preliminary Approval and any related documents necessary to effectuate and implement the terms and conditions of this Agreement.
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b. Other than as specifically set forth above, each Party shall be responsible for its own expenses, including legal fees, in connection with the cooperation obligations outlined above. 10. Objections To Settlement. The Parties agree to the following:
a. Any person seeking to object to the fairness, reasonableness or adequacy of the proposed Settlement must be a Class Member; a former Class Member that has opted out of the Class cannot object to the Settlement. Each Class Member who wishes to object to any term of this Agreement must do so in writing by filing a written objection with the Clerk of the Court and mailing it to the Parties’ respective counsel at the addresses set forth in Section 24 below. Any such objection must be filed with the Clerk of the Court and received by the Parties’ respective counsel no later than forty-five (45) days from the Notice Date. Any such objection must:
i. Identify the Class Member by name; ii. Identify the Class Member’s current street address and current electronic mail address, if any; iii. Identify (A) if the Class Member is an AdvancePay customers, the phone number(s) associated with the Class Member’s Advance Pay account(s) during the Class Period, or (B) if the Class Member is a current or former inmate, the Class Member’s PIN number(s) associated with their debit account(s) that they used for GTL’s services during the Class Period and the institution(s) associated with each PIN number; iv. Attach copies of any materials that will be submitted by or on behalf of the objecting Class Member to the Court or presented at the fairness
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hearing; v. Be signed by the Class Member; and vi. Clearly state in detail the legal and factual ground(s) for the
objection, and if represented by counsel, such counsel’s name, address and telephone number. b. The instructions set forth in this Section for objecting to the Settlement will be recited in the Notice. Any objection that fails to satisfy the requirements of this Section, or that is not properly and timely submitted, will be deemed ineffective and waived, and the Parties will jointly argue that the Class Member asserting such objection may not have his or her objection heard or otherwise considered by the Court. 11. Requests To Appear At Fairness Hearing. Class Members or their counsel who wish to appear at the Fairness Hearing must make such request by notifying the Clerk of Court and the Parties’ respective counsel in writing at the addresses set forth in Section 24 below. Any such request must be filed with the Clerk of the Court and received by the Parties’ respective counsel no later than no later than forty-five (45) days from Notice Date. and must state the name, address and telephone number of the Class Member, as well as the name, address and telephone number of the person who will appear on his or her behalf. Any such request must further state that the Class Member has previously or contemporaneously objected to the Settlement in compliance with the requirements of Section 10 of this Agreement. The instructions set forth in this Section for appearing at the Fairness Hearing will be recited in the Notice. Any request for appearance that fails to satisfy the requirements of this section or of Section 10 above, or that has not been properly or timely submitted, may be deemed ineffective, and shall be deemed to constitute a waiver of such Class Member’s rights to appear and to comment on the settlement at
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the fairness hearing. 12. Requests For Exclusion (Opt Out) From Class Membership. The Parties agree to the
following: a. Any Class Member who wishes to be excluded from membership in the Class
(hereinafter “opt out”) must do so in writing by mailing a written request for exclusion from the Settlement to the Settlement Administrator at the addresses set forth in the Notice. Such request must be postmarked no later than forty-five (45) days from the Notice Date . The request must:
i. Identify the Class Member; ii. Identify the Class Member’s current street address and current electronic mail address, if any; iii. Identify (A) if the Class Member is an AdvancePay customers, the phone number(s) associated with the Class Member’s Advance Pay account(s) during the Class Period, or (B) if the Class Member is a current or former inmate, the Class Member’s PIN number(s) associated with their debit account(s) that they used for GTL’s services during the Class Period and the institution(s) associated with each PIN number;; iv. Be signed by the Class Member; and v. If the Class Member is represented by counsel, provide such counsel’s name, address and telephone number. b. Any Class Member who wishes to be excluded from the Class can only opt out for himself or herself and, except for minors, cannot opt out for any other person, nor can any Class Member authorize any other person to opt out on his or her behalf.
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Any request for exclusion that fails to satisfy the requirements of this Section, or that has not been properly or timely sent, may be deemed ineffective, and the Class Member shall be deemed by the Parties to have waived all rights to opt out, and shall be deemed a Class Member for all purposes under this Agreement.
c. The instructions set forth in this Section for opting-out of the Settlement will be recited in the Notice. 13. Material Breach and Reservation of Rights. The Parties agree that a material breach of this Agreement will have occurred if any other Party defaults under the terms of this Agreement with respect to its obligations under this Agreement, including but not limited to GTL’s obligations to make the payments set forth in this Agreement. In the event that any Party materially breaches this Agreement, any other Party has the option to terminate this Agreement upon fourteen (14) days’ notice to the breaching Party, subject to the breaching Party’s right to cure any alleged material breach. Upon termination of the Agreement, all provisions of this Agreement, including but not limited to the Release (set forth in Sections 16 and 17 of this Agreement), shall be voided. Upon termination due to material breach by GTL the Class Plaintiffs (on behalf of the Class) and the Class Members shall be entitled to assert the full amount of their respective claims, reduced only by the value of any consideration actually received. Upon termination due to material breach by any Class Plaintiff, the Action shall be dismissed with prejudice as to GTL. If GTL defaults under the Agreement and commences a proceeding under Title 11 of the United States Code (a “GTL Bankruptcy”), GTL reserves its right to dispute its liability to the Class Plaintiffs and Class Members. Nothing in this Agreement shall limit any argument or claim the Released Parties, the Class Plaintiffs or the Class Members could assert in a GTL Bankruptcy.
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14. Plan of Allocation. (a) Settlement Payments: Subject to satisfying the requirements set forth
below, Class Members shall be entitled to receive the following: i. For Calls made between January 1, 2006 and December 31, 2008,
20% of the total amount spent for calling time above $.05 per minute; ii. For Calls made between January 1, 2009 and December 31, 2011,
15% of the total amount spent for calling time above $.05 per minute; iii. For Calls made between January 1, 2012 and December 31, 2016
10% of the total amount spent for calling time above $.05 per minute; (b) All of the foregoing shall be based upon the total spending for each account as shown on GTL’s calling records previously provided to the Settlement Administrator. (c) All of the foregoing shall be subject to a maximum recovery of $5,000 per account. (d) Payments to Current Customers:
i. Class Members who are current Advance Pay customers will receive credit into their account for the amount of their claim as set forth above without the need for submitting a proof of claim.
ii. Class Members who are currently incarcerated and have used GTL’s services will receive a calling card or cards or a deposit into their debit account for the amount of their claim as set forth above during the Class Period without the need for submitting a proof of claim, unless such Class Member’s identity is not currently known.
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(e) Claims by Former Customers: i. Class Members who (a) received collect Calls during the Class Period and/or (b) paid for Calls using AdvancePay during the Class Period but are no longer AdvancePay account holders are entitled to recover if they submit a complete and valid claim to the Settlement Administrator (either electronically or in paper form) setting forth the phone number(s) associated with their account(s), their current address, any addresses where they lived while using GTL’s services, and the approximate amount of charges they paid to GTL for ICS. To recover, Class Members also shall submit any reasonably available documentation verifying their status as a Class Member and a former Advance Pay customer, including but not limited to a phone bill or other documentation showing the phone number(s) used by the Class Member. Such a claim form shall be submitted by and signed by the Class Member submitting the claim form. Electronically submitted claim forms shall be uploaded by and signed by the Class Member submitting the claim form. ii. Class Members who are or were prisoners during the Class Period and purchased calling cards from the prison commissary, are entitled to recover if they submit a valid claim setting forth, if known, the PIN numbers for GTL calling cards that they purchased, the correctional facility or facilities where they were purchased, the approximate time frame during which they were purchased and any reasonable alternative proof acceptable to the Settlement Administrator. Such a claim form shall be submitted by and signed by the Class Member
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submitting the claim form. Electronically submitted claim forms shall be uploaded by and signed by the Class Member submitting the claim form. (f) Claims for recovery in accordance with subsection 14(e) must be submitted to Angeion Group, which will validate and administer claims and benefits. Claims may be submitted beginning on the Notice Date and for a period of 120 days thereafter. Claims submitted outside that period will not be valid. GTL will pay all costs of claims administration. Claims may be submitted electronically by uploading the claim form to the Settlement Website and must be submitted by and signed by the Class Member submitting the claim form. Angeion Group will provide the Parties’ counsel with periodic reports during the 120 days following the Notice Date that set forth the number of claims filed, the claims determined to be valid (“Allowed Claims”), and claims determined to be invalid based upon GTL’s records. A class member may object to the denial or reduction of his or her claim. Any claims disputes may be submitted by the class member for final resolution to the Honorable Dennis M. Cavanaugh, U.S.D.J., (ret.), for expedited mediation and/or arbitration. Both GTL and Plaintiffs’ Counsel shall have the right to participate in the claims resolution process. Class Members described in Paragraph 14(d(i) and (ii) are deemed to have Allowed Claims for purposes of this paragraph. (g) In no event shall the total payments made pursuant to this Section 14 exceed $25 million total. In the event the total amount of Allowed Claims exceeds $25 million, there shall be a pro-rata reduction in the amount of each payment, as calculated by Angeion.
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15. No Objection to Fee Request or Case Contribution Awards. a. Class Plaintiffs may apply to the Court for attorneys’ fees and
reimbursement of expenses, up to a maximum of $8,332,500.00, and for Case Contribution Awards to each Class Plaintiff in an amount up to $15,000. GTL shall not take a position on such applications and such payments will not reduce in any way the maximum relief available to the Class. The procedure for and the grant or denial or allowance by the Court of attorneys’ fees, reimbursement of costs and expenses and Case Contribution Awards are considered by the Court separately from the Court’s consideration of the fairness, reasonableness, and adequacy of the Settlement, and any order or proceeding relating to the applications for attorneys’ fees, reimbursement of costs and expenses and Case Contribution Awards, or any appeal from any order relating thereto or the reverse or modification thereof, will not operate to terminate or cancel this Agreement, or affect or delay the finality of the Final Judgment approving the Agreement and the Settlement.
b. Payment by GTL of any attorneys’ fee and costs awarded pursuant to this Section, if and as approved by the Court, will completely satisfy any and all obligations on GTL’s part or on the part of the other Released Parties to pay attorneys’ fees and costs with respect to this Lawsuit. The Released Parties shall have no responsibility or liability whatsoever regarding the payment of attorneys’ fees and costs other than as set forth in this Section.
c. Any attorneys’ fees and expenses that are awarded by the Court shall be paid to Plaintiffs’ Counsel by GTL within fourteen days (14) of final approval by the Court of the attorneys’ fees and expenses award. GTL will pay the attorneys’ fees and
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expenses notwithstanding the existence of any timely filed objections to the attorneys’ fees and expense award, or potential for appeal therefrom, or collateral attack on the Settlement or any part thereof, subject to the Plaintiffs’ Counsel’s personal guaranty (attached hereto as Exhibit A) that they will make appropriate refunds or repayments to GTL if the Settlement is terminated pursuant to the terms of this Agreement or if, as a result of any appeal or further proceedings on remand, or successful collateral attack, the award of attorneys’ fees and expenses is reduced or reversed and such order reducing or reversing the award has become final in that the time for any further appeals or other review has expired and no such further appeal or application for further review has been filed. Plaintiffs’ Counsel shall make the appropriate refund or repayment in full no later than thirty (30) calendar days after: (a) giving or receiving notice that the Settlement has been terminated or cancelled; or (b) any order reducing or reversing the award of attorneys’ fees and/or expenses has become final.
d. An award of attorneys’ fees and/or expenses is not a necessary term of this Settlement and is not a condition of the Settlement embodied herein.
e. The payment of attorneys’ fees and Case Contribution Awards shall be made in accordance with instructions to be provided by Class Counsel. 16. Release.
a. In consideration of this Agreement and the benefits extended to the Class, Class Plaintiffs, on behalf of themselves and the Class Members, and each Class Member, on behalf of himself or herself and his or her respective successors, assigns, past, present, and future parents, subsidiaries, joint ventures, partnerships, related companies, affiliates, directors, officers, shareholders, employees, agents, representatives,
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servants, partners, executors, administrators, assigns, predecessors, successors, descendants, dependents, and heirs, fully release and forever discharge the Released Parties from the Released Claims, effective as of the Settlement Effective Date.
b. Class Plaintiffs, on behalf of themselves and the Class Members, fully understand that if any fact relating to any matter covered by this Agreement is later found to be other than or different from the facts now believed by Class Plaintiffs to be true, Class Plaintiffs, on behalf of themselves and the Class Members, expressly accept and assume the risk of such possible differences in fact and agree and acknowledge that this Agreement shall nevertheless remain fully binding and effective.
c. This Agreement may be pleaded as a full and complete defense to, and may be used as the basis for a temporary restraining order or preliminary or permanent injunction against, any action, suit or other proceeding, which has been or may be instituted, prosecuted, continued to be prosecuted, or attempted, asserting any of the Released Claims.
d. Class Plaintiffs and Plaintiffs’ Counsel acknowledge that GTL considers it to be a material term of this Agreement that the provisions of this sub-section and Section 14, among other paragraphs, will bind all members of the Class who have not excluded themselves in a timely manner from the Class. 17. Further Release. In addition to the provisions of Section 16, the Releasing Parties hereby expressly waive and release, solely with respect to the Released Claims, upon Final Judgment, any and all provisions, rights, and benefits conferred by Section 1542 of the California Civil Code, which states: CERTAIN CLAIMS NOT AFFECTED BY GENERAL RELEASE. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
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CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR; or by any law of any state or territory of the United States, or principle of common law, which is similar, comparable, or equivalent to Section 1542 of the California Civil Code. Each Releasing Party may hereafter discover facts other than or different from those which he, she, or it knows or believes to be true with respect to the claims which are released pursuant to the provisions of Section 16, but each Releasing Party hereby expressly waives and fully, finally, and forever settles and releases, upon Final Judgment, any known or unknown, suspected or unsuspected, contingent or non-contingent claim that the Releasing Parties have agreed to release pursuant to Section 16, whether or not concealed or hidden, without regard to the subsequent discovery or existence of such different or additional facts. 18. Modification or Termination of Agreement.
a. This Agreement shall terminate at the discretion of either GTL or Class Plaintiffs, through Plaintiffs’ Counsel, if: (1) the Court, or any appellate court(s), rejects, modifies, or denies approval of any portion of this Agreement or the proposed Settlement that results in a modification to a material term of the proposed Settlement, including, without limitation, the amount and terms of relief, the obligations of the Parties, the findings or conclusions of the Court, the provisions relating to notice, the definition of the class, the release, and/or the terms of the releases; or (2) the Court, or any appellate court(s), does not enter or completely affirm, or alters, narrows or expands, any portion of the Final Approval and Final Judgment (as provided in Section 7), or any of the Court’s findings of fact or conclusions of law, that results in a modification to a material term of the proposed Settlement. The terminating Party must exercise the option to withdraw
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from and terminate this Agreement, as provided in this Section 18.a., by a signed writing

served on the other Parties no later than twenty (20) days after receiving notice of the

event prompting the termination.

b. If, but only if, this Agreement is terminated pursuant to Section 18.1.

above, then:

i.

This Agreement shall be null and void and shall have no force or

effect, and no Party to this Agreement shall be bound by any of its terms, except

for the terms of Section 18.b. herein;

ii.

The Parties will petition the Court to have any stay orders entered

pursuant to this Agreement lifted;

iii.

All of the Agreement’s provisions, and all negotiations, statements,

and proceedings relating to it, shall be without prejudice to the rights of the

Released Parties, Class Plaintiffs or any Class Member, all of whom shall be

restored to their respective positions existing immediately before the execution of

this Agreement;

iv.

The Released Parties expressly and affirmatively reserve and do

not waive all motions and positions as to, arguments in support of, and

substantive and procedural rights as to all defenses to the causes of action or

remedies that have been sought or might be later asserted in the actions, including

without limitation, any argument or position opposing class certification, liability

or damages;

v.

Neither this Agreement, the fact of its having been made, nor the

negotiations leading to it, nor any action taken by a Party or Class Member

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pursuant to this Agreement shall be admissible or entered into evidence for any

purpose whatsoever;

vi.

Any settlement-related order(s) or judgment(s) entered in this

Class Action after the date of execution of this Agreement related to the American

Securities Released Parties shall be deemed vacated and shall be without any

force or effect;

19. Consent to Jurisdiction. The Parties and any Releasing Parties hereby irrevocably

submit to the exclusive jurisdiction of the Court for any suit, action, proceeding, or dispute

arising out of or relating to this Agreement or the applicability of this Agreement. Without

limiting the generality of the foregoing, it is hereby agreed that any dispute concerning the

provisions of Section 16 or 17, including but not limited to, any suit, action, or proceeding in

which the provisions of Section 16 or 17 are asserted as a defense in whole or in part to any

claim or cause of action or otherwise raised as an objection, constitutes a suit, action, or

proceeding arising out of or relating to this Agreement shall be brought and maintained

exclusively in the Court. In the event that the provisions of Section 16 or 17 are asserted by any

Released Party as a defense in whole or in part to any claim or cause of action or otherwise

raised as an objection in any suit, action or proceeding, it is hereby agreed that such Released

Party shall be entitled to a stay of that suit, action, or proceeding until the Court has entered a

final judgment no longer subject to any appeal or review determining any issues relating to the

defense or objection based on such provisions. Solely for purposes of such suit, action, or

proceeding, to the fullest extent that they may effectively do so under applicable law, the Parties

and any Releasing Parties irrevocably waive and agree not to assert, by way of motion, as a

defense or otherwise, any claim or objection that they are not subject to the in personam

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jurisdiction of the Court. Nothing shall be construed as a submission to jurisdiction for any purpose other than enforcement or interpretation of this Agreement.
20. Class Action Fairness Act. The Claims Administrator shall submit all materials required to be sent to appropriate Federal and State officials pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1715, as applicable.
21. Binding Effect. This Agreement shall be binding upon, and inure to the benefit of, the successors, assigns, and heirs of the Parties, Class Members, the Releasing Parties, and the Released Parties. Without limiting the generality of the foregoing, upon Final Approval of the Settlement, each and every covenant and agreement herein by the Class Plaintiffs shall be binding upon all Class Members and Releasing Parties who have not validly excluded themselves from the Class; and upon Final Approval, each and every covenant and agreement herein shall be binding upon all Class Members.
22. Sole Remedy. This Agreement shall provide the sole and exclusive remedy for any and all Released Claims against any Released Party, and upon entry of Final Judgment, the Releasing Parties shall be forever enjoined and barred from initiating, asserting, maintaining, or prosecuting any and all Released Claims against any Released Party.
23. Authorization to Enter this Agreement. a. The undersigned representatives of GTL covenant and represent that each
such representative is fully authorized to enter into and to execute this Agreement on behalf of the Released Parties.
b. Plaintiffs’ Counsel represents that they are fully authorized to conduct settlement negotiations with counsel for GTL on behalf of the Class Plaintiffs and the
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Class and are fully authorized to enter into and execute the Agreement on behalf of the
Class.
c. The Parties further acknowledge that this Agreement represents the entire
agreement by and between them and that each makes no other representation or warranty
upon which the other can rely other than as stated herein.
24. Notices. All notices under this Agreement shall be in writing. Each such notice
shall be given either by: (a) hand delivery; (b) registered or certified mail, return receipt
requested, postage pre-paid; or (c) Federal Express or similar overnight courier, and, in the case
of either (a), (b) or (c) shall be addressed, if directed to Class Plaintiffs, Class, or any Class
Member, to:
James E. Cecchi Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P.C. 5 Becker Farm Road Roseland, NJ 07068
and
James A. Plaisted Pashman Stein Walder Hayden, P.C. Court Plaza South 21 Main Street, Suite 200 Hackensack, NJ 07601
if directed to GTL, to: Aaron Van Nostrand Greenberg Traurig, LLP 500 Campus Drive, Suite 400 Florham Park, NJ 07932-0677
and
Michael R. Sklaire Greenberg Traurig LLP 1750 Tysons Boulevard, Suite 1000 McLean, VA 22102
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or such other address as the Parties may designate, from time to time, by giving notice to all parties hereto in the manner described in this Section.
25. No Admission. Whether or not Final Judgment is entered or this Agreement is terminated, the Parties expressly agree that this Agreement and its contents, and any and all statements, negotiations, documents, and discussions associated with it, are not and shall not be deemed or construed to be an admission or evidence of any violation of any statute or law or of any liability or wrongdoing by the Released Parties. Nothing in this Agreement shall affect the application of Federal Rule of Evidence 408 in any instance where it would otherwise apply.
26. No Third-Party Beneficiaries. No provision of this Agreement shall provide any rights to, or be enforceable by, any person or entity that is not a Released Party, Class Plaintiff, Class Member, or Plaintiffs’ Counsel.
27. No Party is the Drafter. None of the Parties hereto shall be considered to be the drafter of this Agreement or any provision hereof for the purpose of any statute, case law, or rule of interpretation or construction that would or might cause any provision to be construed against the drafter hereof.
28. Choice of Law. All terms of this Agreement and the other documents contemplated herein shall be governed by and interpreted according to the substantive laws of the State of New Jersey, without regard to its choice of law or conflict of laws principles.
29. Amendment and Waiver. This Agreement shall not be modified in any respect except by a writing executed by the Parties, and the waiver of any rights conferred hereunder shall be effective only if made by written instrument of the waiving Party. The waiver by any Party of any particular breach of this Agreement shall not be deemed or construed as a waiver of any other breach, whether prior, subsequent or contemporaneous, of this Agreement. This
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Agreement does not waive or otherwise limit the Parties’ rights and remedies for any breach of this Agreement. Any breach of this Agreement may result in irreparable damage to a Party for which such Party will not have an adequate remedy at law. Accordingly, in addition to any other remedies and damages available, the Parties acknowledge and agree that the Parties may immediately seek enforcement of this Agreement by means of specific performance or injunction, without the requirement of posting a bond or other security.
30. Execution in Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute a single agreement. Facsimile or Electronic Mail signatures shall be considered as valid signatures as of the date hereof, although the original signature pages shall thereafter be appended to this Agreement and filed with the Court.
31. Integrated Agreement. This Agreement comprises the entire agreement between the Parties and the terms of this Agreement are contractual and are not a mere recital. The Parties agree that this Agreement may be modified only by a written instrument signed by the Parties and that no Party will assert any claim against another based on any alleged agreement affecting or relating to the terms of this Agreement not in writing and signed by the Parties.
32. Voluntary Settlement. The Parties agree that this Agreement and the Settlement were negotiated in good faith by the Parties, and reflect a Settlement that was reached voluntarily after consultation with competent counsel and the participation of a neutral mediator.
33. Time For Compliance. If the date for performance of any act required by or under this Agreement to be performed on a particular day or within a specified period of time falls on a Saturday, Sunday or legal or Court holiday, such act may be performed upon the next business day which is not a Saturday, Sunday or legal or Court holiday, with the same effect as if the act
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Case 2:13-cv-04989-WJM-MF Document 250-2 Filed 05/28/20 Page 35 of 41 PageID: 6273 had been performed on the day or within the period of time specified by or under this Agreement. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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Case 2:13-cv-04989-WJM-MF Document 250-2 Filed 05/28/20 Page 36 of 41 PageID: 6274

IN WITNESS WHEREOF, the Parties, individually or through their duly authorized

representatives, enter into this Agreement on the date first above written.

______________________________ Name: John C. Pitsenberger Title: Chief Financial Officer

Date: May _28_, 2020

On behalf of Defendants Global Tel*Link Corporation and DSI-ITI Inc.

_______________________________

Date: May __, 2020

James E. Cecchi

Carella, Byrne, Cecchi, Olstein, Brody & Agnello, P.C.

5 Becker Farm Road

Roseland, New Jersey 07068

James A. Plaisted Pashman Stein Walder Hayden Court Plaza South 21 Main Street, Suite 200 Hackensack, New Jersey 07601

Date: May

, 2020

Plaintiffs’ Counsel

34

,.!
Case 2:13-cv-04989-WJM-MF Document 250-2 Filed 05/28/20 Page 37 of 41 PageID: 6275

IN MTNESS WHEREOF, the Parties, individually or through their duly authorized

representatives, entsr into this Agteement on the date first aboye written.

Name :
'f itle:

Date: Mav -_, 2020

On heh{tff af" De.fbntlants Glohul 'l"e!*Link {.,*rpr;rarion und DS}-{TI Inc.

James Care

//Alt
Date: May _.2020
Cecchi, Olstein, Brody & Agnello, P.C.

Roseland. Nerv Jersey 07068

James A. Plaisted Pashman Stein Walder Hayden Court Plaza South
2t Malr. Street, Suite 200
Hackensack, New Jersey 07601

Date: May

, 20t0

Plaintffi'Counsel

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Case 2:13-cv-04989-WJM-MF Document 250-2 Filed 05/28/20 Page 38 of 41 PageID: 6276

Case 2:13-cv-04989-WJM-MF Document 250-2 Filed 05/28/20 Page 39 of 41 PageID: 6277
Exhibit A

Case 2:13-cv-04989-WJM-MF Document 250-2 Filed 05/28/20 Page 40 of 41 PageID: 6278

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

BOBBIE JAMES, et al. on behalf of

Civil Action No. 13-4989 (WJM)(MF)

themselves and all others similarly situated,

Plaintiffs v.
GLOBAL TEL*LINK CORPORATION, INMATE TELEPHONE SERVICE, and DSIITI LLC,
Defendants.

ATTORNEY GUARANTY

I, the undersigned, acknowledge and agree as follows: I have read the Settlement Agreement entered into between Plaintiffs Bobbie James, Betty King, Mark Skladany and Barbary Skladany (collectively “Class Plaintiffs”) and Defendant Defendants Global Tel*Link Corporation and DSI-ITI LLC (together “GTL” or “Defendants”) in the above matter and understand its terms. I acknowledge that any amount received by me as attorneys’ fees and/or costs pursuant to the Settlement Agreement, plus interest accruing at a rate equal to the prime rate reported in the Wall Street Journal on the date the Settlement Agreement is fully executed, are subject to repayment to GTL in the event that the Settlement Agreement is terminated pursuant to its terms. Within thirty (30) days of receiving written notice of termination of the Settlement Agreement from any counsel for the parties, I will reimburse to GTL any and all sums received by me as attorneys’ fees and costs pursuant to the Settlement Agreement, plus interest accruing at a rate equal to the prime rate reported in the Wall Street Journal on the date the Settlement Agreement was fully executed. By receiving any such sums, I submit to the jurisdiction of the United States District Court for the District of New Jersey for the enforcement of any and all disputes relating to or arising out of the reimbursement obligation set forth herein and in the Settlement Agreement.

Case 2:13-cv-04989-WJM-MF Document 250-2 Filed 05/28/20 Page 41 of 41 PageID: 6279
Date: By:

 
 Case 2:13-cv-04989-WJM-MF Document 1 Filed 08/20/13 Page 1 of 28 PageID: 1

James E. Cecchi Lindsey H. Taylor CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO 5 Becker Farm Road Roseland, New Jersey 07068 (973) 994-1700

James A. Plaisted Lin C. Solomon WALDER, HAYDEN & BROGAN, P.A. 5 Becker Farm Road Roseland, New Jersey 07068 (973) 992-5300

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

BOBBIE JAMES, CRYSTAL GIBSON, BETTY KING, BARBARA SKLADANY, MARK SKLADANY, MILAN SKLADANY, and DR. JOHN F. CROW, on behalf of themselves and all others similarly situated,
Plaintiffs v.

Civil Action No.:
COMPLAINT and DEMAND FOR JURY TRIAL

GLOBAL TEL*LINK CORPORATION, INMATE TELEPHONE SERVICE, and DSI-ITI LLC,

Defendants.

Plaintiffs Bobbie James, Crystal Gibson, Betty King, Barbara Skladany, Mark Skladany, Milan Skladany, and Dr. John F. Crow by way of Complaint against Defendants Global Tel*Link Corporation, Inmate Telephone Service, and DSI-ITI, LLC, say:
NATURE OF THE ACTION 1. This is a consumer class action for violations of federal law and New Jersey state law arising from (a) Defendants’ abuse of their monopoly power over phone calls made from New Jersey by prisoners by charging rates, more than 100 times higher than market rates; (b) Defendant’s abusive, discriminatory and unreasonable phone charges whereby Defendants

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permit New Jersey prisoners to make collect calls but only to family, friends and lawyers who open credit/debit accounts and who customarily are required to make substantial advance payments to Defendants from which charges of as much as 20% of the deposit are siphoned off at opening and again at closing of the accounts as “administrative costs”; (c) Defendants’ failure to fully and adequately disclose to their customers charges that they will incur in connection with their use of Defendants’ telephone service and the rates that will be charged for calls made using Defendant telephone service; (d) Defendants’ failure to disclose to their customers certain practices followed by Defendants in connection with their telephone service that adversely affect their customers’ accounts; (e) Defendants’ practices of forfeiting balances in accounts when the account is not used for 90 days after that Defendants require that the accounts be opened with minimum payments of $25, $50 or $100.
2. Defendants’ wrongful conduct involves relatively small amounts of damages for each class member and Defendants are carrying out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money. Plaintiffs bring this action in their own right and on behalf of all other persons similarly situated.
JURISDICTION AND VENUE 3. Jurisdiction is proper in this Court by 28 U.S.C. 1332(d) because the amount in controversy exceeds $5 million, exclusive of interest and costs, and at least one class member is a citizen of a state other than that of a defendant. Jurisdiction is also proper in this Court pursuant to 28 U.S.C. § 1331 because this matter involves federal questions whether there are violations of 47 U.S.C. § 201 et seq. and 42 U.S.C. § 1983 and the Court has supplemental jurisdiction over Plaintiffs’ state law claims because they arise from a common nucleus of
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operative facts and are such that Plaintiffs ordinarily would expect to try them in one judicial proceeding.
5. Venue is proper in this judicial district pursuant to 28 U.S.C. §1391(b) in that all Defendants transact substantial business within, and are subject to personal jurisdiction, in this judicial District and thus “reside” in this District and because a substantial part of the events giving rise to the claims asserted herein took place in this judicial District.
PARTIES 6. Plaintiff Bobbie James is, and at the times relevant to the claims alleged herein was, a citizen of the State of New Jersey and resides in Newark, New Jersey. 7. Plaintiff Crystal Gibson is, and at the times relevant to the claims alleged herein was, a citizen of the State of New Jersey and resides in Newark, New Jersey. 8. Betty King is, and at the times relevant to the claims alleged herein was, a citizen of the State of New Jersey and resides in East Orange, New Jersey. 9. Plaintiff Barbara Skladany is, and at all times relevant to the claims alleged herein was, a citizen of the State of New York, residing in New York, New York. 10. Plaintiff Mark Skladany is, and at the times relevant to the claims alleged herein was, a citizen of the State of New Jersey and was housed in New Jersey correctional facilities, in the Somerset County Jail during the period approximately September 2010 to September 2012 and then thereafter in the New Jersey State Prison at Yardville, New Jersey. 11. Plaintiff Milan Skladany is, and at all times relevant to the claims alleged herein was, a resident in the State of New Jersey until approximately 2011 when he returned to the Slovak Republic where he is a citizen.
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12. Plaintiff Dr. John F. Crow is, and at all times relevant to the claims alleged herein was, a citizen of the State of New York, residing in New York, New York.
13. As used herein, “Plaintiffs” shall mean and refer to all Plaintiffs identified in ¶6 to ¶12, together.
14. Defendant GTL is, and at all times relevant hereto was, a privately held Delaware corporation with it principal place of business located in Mobile, Alabama.
15. Defendant ITS is a wholly owned subsidiary of GTL and a Delaware corporation with its principal place of business in Mobile, Alabama.
16. Defendant DSI-ITI is a Delaware limited liability company and, upon information and belief, is the successor-in-interest to ITS. Upon information and belief, GTL is the sole owner and member of DSI, and DSI-ITI assumed all of ITS’ existing contracts as of June 10, 2010.
12. Defendants provide managed telecommunications services at state and local correctional facilities in New Jersey and elsewhere in the United States so inmates can communicate with family members, friends, attorneys and other approved persons outside the correctional facilities.
DEFENDANTS’ UNFAIR, UNCONSCIONABLE AND DECEPTIVE BUSINESS PRACTICES
13. AT&T bid and won a New Jersey contract in 2002 to provide all telecommunications services to inmates in the State of New Jersey’s correctional facilities.
14. AT&T sold the New Jersey contract rights to be the sole telecommunications provider for New Jersey inmates to GTL in 2002.
15. Plaintiffs presently do not have information with respect to the arrangements between GTL, ITS and/or DSI-ITI as to which entity customers purportedly deal with and which
4

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entity purportedly provides what service to customers. However, regardless of which entity does what, GTL, ITS and DSI-ITI have operated as a single economic unit with respect to the telephone services described herein.
16. Defendants have the sole right to provide telecommunications services which enable incarcerated persons to communicate by telephone with family members, friends and other persons outside certain New Jersey state and county prison and detainee facilities.
17. Defendants remit to the State approximately 40% of the rates charged for the right to have a monopoly over phone services at certain State prisons and detainee facilities.
18. Defendants ITS and DSI-ITI remit 50% or more to Essex, Monmouth, Bergen, Hudson, among other counties, for the rights to have a monopoly over phone services provided by those county prisons and detainee facilities.
19. According to publicly available information, the State of New Jersey alone receives $4.42 million per year as its percentage of revenue pursuant to its contract with GTL. Based upon that figure, upon information and belief, the percentages paid to the various counties should be greater. Further, this information would indicate that Defendants’ total revenue from calls placed from New Jersey detention facilities would be in tens of millions of dollars per year.
20. Defendant GTL has used the existing contract with the State of New Jersey as a basis for its subsidiary ITS and DSI-ITI to enter similar agreements with many County prison facilities such as Essex, Hudson, Monmouth and Bergen Counties among others.
21. As a result of the foregoing contracts, since 2002, Defendants have been the sole telecommunications provider for persons held in certain New Jersey State prison or detention facilities to communicate by telephone with family members, friends and other persons.
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22. Because of the exclusive provider position and the literally captive market, Defendants are able to exploit customers by charging them unconscionably excessive rates for calls, as well as unconscionable and undisclosed fees and connection charges, without regard to what other providers of prepaid calling services are charging in the marketplace.
23. Upon information and belief, Defendants purchase their minutes for calls terminating within the United States for less than 3/10 of a penny per-minute, and Defendants often resell the minutes it buys at more than 100 times their cost to Plaintiffs and other Class Members.
24. The market rate for competitively priced prepaid calling cards is approximately 1¢ to 2¢ per minute for calls within the United States. Depending upon the country being called, the rates for international calls can be as low as 1¢ per minute. Defendants, however, charge approximately 30¢ per minute for calls within the United States. Defendants likewise charge exorbitant rates for international calls.
25. The vast majority of Defendants’ customers establish their accounts over the phone. When a prisoner wishes to call someone outside the detention facility, they must place a collect call to that person. However, rather than an operator asking the called person whether they will accept the charges for the call, a series of prompts routes the called person whereby the called person is informed they must set up an account with Defendants in order to accept the call. The same automated procedures are followed when customers seek to open an account by calling the Defendants’ 800 number provided at the prison facility to customers.
26. Using standardized scripts and prompts, the Defendants’ system sets up an account for the customer or called person using a credit or debit card provided by the customer. These accounts must be set up in amounts of $25, $50, or $100. After the account is set up, the
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called person is then provided with a PIN so he or she may accept calls from the prisoner in the future and charges for all calls are deducted from the called persons’ account.
27. Customers are told by Defendants that no information on rates and charges are available until they have an account number.
28. Customers of Defendants are not provided a written contract when they establish an advance pay account with Defendants by telephone, nor are they advised of any of the terms and conditions applicable to their account.
29. Defendants do not issue account statements in writing or electronically to customers in the ordinary course of business. When making or receiving a call, the customer is given a voice prompt advising the customer how much money is left in their account, but a customer cannot obtain an itemized statement of charges to their account, nor can the customer determine how many minutes of calling time they have left because Defendants do not disclose rates and applicable charges.
30. Defendants fail to inform their customers that they will be charged a service or set-up fee which will be deducted from their advance pay balance, when an account is first established.
31. Defendants charges an unconscionable service fee of approximately 20% of the deposit, i.e. $4.75 out of the first $25.00 deposit, $9.50 out of the first $50.00 deposit, and $19.00 out of the first $100.00 deposit, when an account is first established, and whenever an account is recharged. In essence, Defendants charge their customers for the ability to pay for Defendants’ services.
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32. Defendants fail to inform their customers when an account is first established that they will be charged fees (a per-call transaction or connection fee) for each call placed in addition to the call rates per minute.
33. Defendants charge upwards of $1.75 per call as a connection or transaction fee. 34. Defendants charge a $5.00 fee to close an account and obtain a refund of any remaining balance. However, Defendants fail to inform their customers when an account is first established that they will be charged this additional service fee to close the account. 35. Defendants fail to inform their customers when an account is first established that their account balances will be forfeited if they do not use Defendants’ service for a 90-day period. 36. Defendants fail to inform their customers when an account is first established that a monthly inactivity fee will be charged against their account for any months when it is not used. 37. Because customers must purchase calling time in multiples of $25, $50, or $100 and must establish an account in advance of paying for calls, it is inevitable that customers will not use the exact amount of money in their account. As a result, every customer will incur either the $5.00 fee to close their account or will forfeit their account as a result of it being inactive for 90 days. 38. Defendants also fail to advise customers that the customers’ account may be frozen if Defendants deem the amount remaining in the account to be too little to accept calls from an inmate. In order to unfreeze the account so he or she can receive calls, the customer must recharge his or her account, while incurring service charges of 20% of the amount deposited in doing so.
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PLAINTIFFS’ EXPERIENCE WITH DEFENDANT 39. Each of the Plaintiffs set up their accounts in accordance with the procedures set forth above. Defendants did not disclose to any of the Plaintiffs the rates applicable to their calls, nor did they disclose any of the fees and other charges applicable to their accounts, as described above. 40. Plaintiff Bobbie James became a customer of Defendants in approximately April 2011 in order to communicate with her grandson in Essex County Jail. She had helped raise and support her grandson prior to his incarceration and established the advance pay account with GTL in order to continue to communicate with him. 41. Ms. James often deposited $25 into her accounts which permitted her to speak with one of her grandsons approximately three times a week approximately 15 minutes total calling time. The remainder of the $25 deposit is eaten up by fees and charges. 42. Plaintiff Crystal Gibson became a customer of GTL in approximately September of 2010 when her significant other was incarcerated in the Essex County Jail in New Jersey. 43. Defendants charged Ms. Gibson a cancellation or closure fee in order for her to get a refund of the balance in her account. 44. Defendants also charged Ms. Gibson an inactivity fee of approximately $1.49 per month when her account was not used. 45. Defendants’ representative told Ms. Gibson that Defendants were charging her an extra and additional fee for establishing an account because she used a live operator and did not follow the scripted automated system when she first set up her account.
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46. Betty King is a senior citizen who opened an account with Defendants to receive phone calls from her brother who is an inmate at the East Jersey State Prison in Rahway, Middlesex County, New Jersey.
47. Mrs. King has never spoken with a representative of Defendants but has signed up as a customer through Defendants automated phone system.
48. From at least 2002 Mrs. King has deposited hundreds of dollars into her account and her brother calls her regularly.
49. Mrs. King normally deposits either $25 or $50 into the Defendants account. 50. Defendants have never provided Mrs. King with any statement of her account. 51. Defendants have never informed Mrs. King of the fees, rates and other charges which are imposed on her for using the prepaid service. 52. Plaintiff Barbara Skladany became a customer of GTL in or about 2010, when she established an advance pay account with GTL in order to communicate by telephone with her son, Mark Skladany, who was incarcerated in the Somerset County Jail. During the period of Mark’s incarceration, Barbara Skladany has made deposits of many hundreds of dollars into her accounts with Defendants. 53. Plaintiff Milan Skladany, who was then a resident of Somerset County, became a customer of GTL in and around 2010 when he established an advance pay account with GTL in order to communicate with his son, Mark Skladany, who was incarcerated in the Somerset County Jail. 54. Plaintiff Mark Skladany deposited money in a pay phone account from his resources available while he was in prison to fund advance pay accounts for him to make calls from prison to his parents, lawyers, relatives and friends.
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55. During that time, Ms. Skladany has had to pay service fees to open and recharge her account and connection fees with respect to calls received from her son, Mark, as described above.
56. Mark Skladany was moved to different institutions at various times in 2011 and 2012. As a result of a move, Ms. Skladany’s existing account was no longer valid to receive calls from Mark, so she had to set up another account. In doing so, she incurred additional service fees, as well as a $5 charge to close her prior account and receive a refund of the amounts remaining in her old account.
57. At various times during the time that Ms. Skladany has maintained an account for Mark with the Defendants, the Defendants have frozen her account pending verification of calls made by Mark and required additional prepayments even before the advance pay balance was depleted in order to continue to receive telephone calls from Mark.
58. Despite many requests, Defendants refused to provide Barbara Skladany and Milan Skladany with written statements of their accounts identifying charges and rates.
59. Dr. Crow became a customer of GTL when he established an advance pay account in April 2013 in order to communicate by telephone with his son who was incarcerated in the Mercer County Correctional Facility, Lambertville, New Jersey.
60. Defendants forfeited the balance in Dr. Crow’s account in approximately July of 2013.
CLASS ACTION ALLEGATIONS 61. Plaintiffs bring this action, on behalf of themselves and all others similarly situated, as a class action pursuant to Fed.R.Civ.P. 23. Subject to confirmation, clarification
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and/or modification based on discovery to be conducted in this action, the class that Plaintiffs seek to represent (“the Class”) shall be defined as follows:
all persons of the United States who, at any time since 2002 were incarcerated in a New Jersey prison institution who use or used the phone system provided by Defendants or, who established an advance pay account with Defendants in order to receive telephone calls from a person incarcerated in New Jersey. 62. As used herein, “Class Members” shall mean and refer to the members of the Class as set forth above. 63. This action is brought and properly may be maintained as a class action pursuant to the provisions of Fed.R.Civ.P. 23(a)(1)-(4) and 23(b)(1), (b)(2) or (b)(3) and satisfies the requirements thereof. 64. Numerosity – Fed.R.Civ.P. 23(a)(1). The members of the Class are so numerous that individual joinder of all the members is impracticable. On information and belief, there are not less than tens of thousands of persons who have been affected by Defendants’ conduct. The precise number of Class members and their addresses is presently unknown to Plaintiff, but may be ascertained from Defendants’ books and records. Class members may be notified of the pendency of this action by recognized, Court-approved notice dissemination methods, which may include U.S. Mail, electronic mail, Internet postings, and/or published notice. 65. Commonality and Predominance – Fed.R.Civ.P. 23(a)(2) and 23(b)(3). Common questions of law and fact exist as to the class members, as required by Fed.R.Civ.P. 23(a)(2), and predominate over any questions that affect only individual class members within the meaning of Fed.R.Civ.P. 23(b)(3). 66. The common questions of fact include, but are not limited to, the following:
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(a) whether Defendants have failed to fully and adequately disclose to Plaintiffs and the other Class Members service charges to open and close the account that are assessed to the class members in connection with their
use of Defendant’s telephone service;
(b) whether Defendants have failed to fully and adequately disclose to Plaintiffs and the other Class Members Defendant’s practice of forfeiting the advance pay balance of their accounts whenever accounts remain unused for 90 days and charging monthly inactivity fees;
(c) whether Defendants have failed to fully and adequately disclose to Plaintiffs and the other Class Members the per-minute rates that they will be and have been charged when calls are made to them by incarcerated persons;
(d) whether Defendants’ practice of requiring advance fee deposits with such charges, fees and forfeitures is a practice which warrants restitution or treble damages under the New Jersey Consumer Fraud Act;
(e) whether Defendants’ charging rates for phone calls that are a 100 times or more higher than the rates at which they are acquired and charging such opening, closing, transactional and forfeiture fees without disclosure of the amounts at the times of sale are unconscionable commercial practices and/or are practices constituting unfair enrichment; and
(f) whether Plaintiffs and the other Class Members have sustained ascertainable losses and damages as a result of Defendant inflated and abusive charges and practices of non-disclosure and, if so, the proper measure and appropriate formula to be applied in determining such damages.
67. The questions of law that are common to Plaintiffs and the other class members
include, but are not limited to, the following:
(a) whether the practices of Defendant complained of herein and/or Defendant’s failure to make full and adequate disclosures to their customers concerning such practices violate §201(b) of the Federal Communications Act and regulations thereunder and/or 48 N.J.S.A. § 48:3-1 and § 48:3-2;
(b) whether the practices of Defendant complained of herein and/or Defendant failure to make full and adequate disclosures to their customer concerning such practices violate one or more provisions of the New Jersey Consumer Fraud Act (“CFA”) and regulations promulgated thereunder;
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(c) whether the practices of Defendant complained of herein and/or Defendant’s failure to make full and adequate disclosures to their customer concerning such practices constitute unfair, unlawful and/or fraudulent business practices which warrant a refund as unjust enrichment or treble damages under New Jersey law;
(d) whether the inflated and abusive charges levied by the Defendants upon their customers pursuant to the exclusive monopoly rights granted by the State and County government constitutes an illegal taking in violation of 42 U.S.C.§1983; and
(e) whether Plaintiffs and the other Class Members are entitled to the declaratory relief sought herein.
68. Typicality – Fed.R.Civ.P. 23(a)(3). Plaintiffs’ claims are typical of the claims of the other class members whom they seek to represent under Fed.R.Civ.P. 23(a)(3) because Plaintiffs and each of the Class Members have been subjected to the same wrongful practices and have been damaged thereby in the same manner.
69. Adequacy of Representation – Fed.R.Civ.P. 23(a)(4). Plaintiffs will fairly and adequately represent and protect the interests of the class members as required by F.R.Civ.P. 23(a)(4). Plaintiffs are adequate representatives of the Class because they have no interests that are adverse to the interests of the other Class Members. Plaintiffs are committed to the vigorous prosecution of this action and, to that end, Plaintiffs have retained counsel who are competent and experienced in handling class action litigation on behalf of consumers.
70. Superiority – Fed.R.Civ.P. 23(b)(3) A class action is superior to any other available means for the fair and efficient adjudication of this controversy, and no unusual difficulties are likely to be encountered in the management of this class action. The damages or other financial detriment suffered by Plaintiff and each of the other Class members are relatively small compared to the burden and expense that would be required to individually litigate their claims against Defendants, so it would be impracticable for Class members to individually seek
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redress for Defendants’ wrongful conduct. Even if Class members could afford individual litigation, the court system could not. Individualized litigation creates a potential for inconsistent or contradictory judgments, and increases the delay and expense to all parties and the court system. By contrast, the class action device presents far fewer management difficulties, and provides the benefits of single adjudication, economy of scale, and comprehensive supervision by a single court.
71. Declaratory and Injunctive Relief – Fed. R.Civ.P. 23(b)(2) In the alternative, this action is certifiable under the provisions of Fed.R.Civ.P. 23(b)(1) and/or 23(b)(2) because:
(a) the prosecution of separate actions by individual Class Member would create a risk of inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for Defendant;
(b) the prosecution of separate actions by individual Class Member would create a risk of adjudications as to them that would, as a practical matter, be dispositive of the interests of the other Class Members not parties to the adjudications or substantially impair or impede their ability to protect their interests; and
(c) Defendant have acted or refused to act on grounds generally applicable to the Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole and necessitating that any such relief be extended to the class members on a mandatory, class wide basis.
72. Plaintiffs are aware of no difficulty that will be encountered in the management of this litigation that will preclude its maintenance as a class action.
FIRST COUNT (Violation of the New Jersey Consumer Fraud Act) 73. Plaintiffs repeat and incorporate herein by reference each and every allegation in paragraphs 1 through 72 as though fully set forth herein.
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74. Plaintiffs bring this claim pursuant to the New Jersey Consumer Fraud Act (“CFA”).
75. The CFA applies to Defendant’s actions and conduct described herein because it extends to transactions that are intended to result, or that have resulted, in the sale of services to consumers with a nexus to New Jersey, i.e.¸ telephone calls placed from New Jersey.
76. Plaintiffs and each Class Member are “consumers” within the meaning of CFA. 77. The telephone service that Plaintiffs and Class Members obtained from Defendants comes within the definition of “services” set forth in CFA. 78. Defendants have engaged in fraudulent and/or deceptive commercial practices in violation of the CFA by charging excessive, undisclosed fees and charges as described above. 79. In addition, Defendants have engaged in an unconscionable commercial practice in violation of the CFA by charging excessive per-minute phone rates which are grossly in excess of Defendants cost, and grossly in excess of the market price for phone calls, which they are able to charge only because they have a monopoly on phone calls from designated detention facilities, free from competition. 80. Likewise, Defendants’ undisclosed fees are unconscionable in that Defendants provide no services and Plaintiffs receive no benefit in return for those charges and/or the fees and charges are grossly in excess of the incremental cost to Defendants for the activity for which the fees and charges are imposed. 81. Plaintiffs and other Class Members have suffered an ascertainable loss as a result of Defendants violations by having to pay the foregoing excessive, undisclosed charges and fees, as well as having to pay excessive rates for making or receiving telephone calls from New Jersey inmates, as described above.
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82. Further, unless Defendants are enjoined from continuing to engage in these violations of the CFA, Plaintiffs and the other class members will continue to be injured by Defendant’s actions and conduct.
SECOND COUNT (Violations of the Disclosure Requirements
of the CFA effective August 1, 2008) 83. Plaintiffs repeat the allegations contained in Paragraphs 1-82 as if fully set forth herein. 84. New Jersey amended the CFA effective on August 11, 2008 to require certain additional disclosure requirements specifically applicable to prepaid telephone calling services, such as those offered by Defendants described above, to those who purchase those services, such as Plaintiffs and other Class Members. 85. N.J.S.A. § 56:8-176(h) provides that a prepaid telephone service company “shall not impose any fee or surcharge that is not disclosed as required by this section or that exceeds the amount disclosed by the company.” 86. New Jersey has adopted pertinent rules and regulations to enforce the requirements of N.J.S.A. §56:8-176(h) which requires specific disclosures at the time of solicitation or sale. 87. Those regulations provide that the amendment to the CFA and regulations promulgated pursuant thereto requiring disclosure by pre-paid telephone services are a supplement to the enforcement and prosecutions of other practices unlawful under the CFA. 88. As described above, Defendants did not disclose their fees, surcharges and forfeiture policies when it required Plaintiffs to first open an account and purchase the right to receive calls.
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89. As described above, Defendants did not disclose the amounts of fees, surcharges and forfeiture policies to customers who received a collect call for the first time from an inmate.
90. Defendants informed customers, like Plaintiffs, in the initial set up call that their telephone service was not programmed to receive collect calls and that they must open an account with Defendant and prepay that account in the amount of $25, $50, or $100 or they could not receive calls. Defendants did not disclose any specific set-up or closure fees or surcharges or inactivity fees to be deducted and charged to customer’s accounts at the time of the sale, as required by the N.J.S.A. § 56:8-176(a)(3) and applicable regulations.
91. Defendants did not disclose that balances unused for 90 days would be forfeited when customers received their first invitation to purchase the rights to receive calls and open an account as required by N.J.S.A. § 56:8-176(a)(3).
92. Defendants did not refer new customers to their websites in the first automated calls inviting customers to purchase the right to receive calls and open an account.
93. Defendants web-site now references that there will be fees but that website fails to disclose the amounts of any set-up, closure or forfeiture fees as required by the N.J.S.A. § 56:8176(a)(3).
94. Defendants, up through the filing of the action, failed to disclose any specific fee amount that would be charged or forfeited by the customers at the time of sale as required by N.J.S.A. § 56:8-176(a)(3).
95. Defendants also violate N.J.S.A. § 56:8-176(a)(8) by failing to disclose information required to be disclosed by regulations enacted by the Department of Consumer Affairs. Those violations include failing to disclose:
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a. Any surcharges and call setup charges, in violation of N.J.A.C. § 13:45A8.3(a)(1);
b. The name of the provider of the actual calling services, in violation of N.J.A.C. § 13:45A-8.3(a)(2)(i);
c. The expiration period of the customer’s account, in violation of N.J.A.C. § 13:45A-8.3(a)(2)(v);
d. That the service is subject to maintenance and other fees and charges, in violation of N.J.A.C. § 13:45A-8.3(a)(2)(vi);
e. Instructions as to how to obtain complete information about the use of the calling services, including fees and charges for, and any restrictions or limitations on the use of the account, in violation of N.J.A.C. § 13:45A8.3(a)(2)(vii)
96. Defendants also violate N.J.A.C. § 13:45A-8.4 in that they charge fees, taxes, surcharges and other amounts which are not permitted fees and/or which are not disclosed pursuant to N.J.A.C. § 13:45A-8.3.
97. Defendants also violate N.J.A.C. § 13:45A-8.11 in that the calling time purchased from Defendants expire 90 days after their last use, but this expiration date is not provided to customers when they open their accounts. In addition, Defendants violate this section in that the 90-day expiration date on accounts is less than the presumptive one-year expiration date set forth in this regulation for accounts without a specific expiration date.
98. Violations of the foregoing regulations are per se violations of the Consumer Fraud Act.
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99. Plaintiffs and other Class Members have suffered an ascertainable loss as a result of Defendants violations by having to pay the foregoing excessive, undisclosed charges and fees, as well as having to pay excessive rates for making or receiving telephone calls from New Jersey inmates, as described above.
100. Further, unless Defendants are enjoined from continuing to engage in these violations of the CFA, Plaintiffs and the other class members will continue to be injured by Defendant’s actions and conduct.
THIRD COUNT (Violation of New Jersey Public Utilities Statutes) 101. Plaintiffs repeat and incorporate herein by reference each and every allegation in paragraphs 1 through 100, inclusive, as though fully set forth herein. 102. Plaintiffs bring this claim for relief on behalf of themselves and the Members of the Class. 103. Intrastate phone rates within New Jersey are required to be “reasonable” and not discriminatory by N.J.S.A. § 48:3-1 and § 48:3-2, which provides in pertinent part that a company providing telecommunication services cannot: a. Make, impose or exact any unjust or unreasonable, unjustly discriminatory or unduly preferential individual or joint rate, commutation rate, mileage and other special rate, toll, fare, charge or schedule for any product or service supplied or rendered by it within this state; b. Adopt or impose any unjust or unreasonable classification in the making or as the basis of any individual or joint rate, toll, fare, charge or schedule for any product or service rendered by it within this state.
N.J.S.A. § 48:3-1 or … adopt, maintain or enforce any regulation, practice or measurement which shall be unjust, unreasonable, unduly preferential, arbitrarily or unjustly discriminatory or otherwise in violation of law.
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N.J.S.A. § 48:3-2 104. Defendants have engaged in and continue to engage in the unlawful practices
alleged herein and have failed and continue to fail to make full and adequate disclosures to their customers concerning these practices.
105. Defendants’ customers are charged for unauthorized and inappropriate connection fees, service fees and forfeiture charges among other charges which are unjust, unreasonable, discriminatory and preferential in violation of N.J.S.A. §§ 48-3.1 and 48:3.2.
106. Defendants take steps to conceal their unfair, unreasonable, preferential and discriminatory charges to customer accounts willfully refusing to provide written account statements.
107. Defendants have not filed rates with the New Jersey Board of Public Utilities. 108. As a direct and proximate result of Defendant’s violations of New Jersey Public Utility Laws, Plaintiffs and the New Jersey class have been damaged in an amount according to proof at trial.
FOURTH COUNT (Unjust Enrichment) 109. Plaintiffs repeat and incorporate herein by reference each and every allegation in paragraphs 1 through 108, as though fully set forth herein. 110. Plaintiffs and other Class Members reasonably expect that they would only have to pay market rates for telephone calls placed by New Jersey inmates and would not have to incur other charges which provide no commensurate benefit to them. 111. As is described above, Plaintiffs and other Class Members do not receive what they pay for with respect to the per-minute rates for telephone calls, because those rates are grossly in excess of market rates, nor do they receive what they pay for with respect to the
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undisclosed fees and charges in that Plaintiffs and other Class Members receive no benefit whatsoever from those charges.
112. Defendants have been unjustly enriched at the expense of Plaintiffs and other Class Members because Defendants have charged per-minute calling rates grossly in excess of market rates and charged excessive fees and charges that Defendants would not be able to charge but for the fact that they have a monopoly on telephone calls placed from New Jersey detention facilities and are not subject to any competitive pressures of the market.
113. The revenues and profits derived from these excessive charges run into several million dollars per year.
114. Under the circumstances it would be unjust for Defendants to keep such revenues and profits.
115. As a result, Defendants should be required to disgorge and restore to Plaintiffs and the Class all monies wrongfully obtained by Defendant as a result of their extra charges to open and closed accounts, forfeited balances and all other improper charges, together with interest thereon.
116. Wherefore Defendants should be enjoined from these unconscionable, abusive and extortionate billing practices and Defendants should pay over all such unjust enrichment received.
FIFTH COUNT (Violation of The Federal Communications Act, 47 U.S.C. § 201) 117. Plaintiffs repeat and incorporate herein by reference each and every allegation in paragraphs l through 116, inclusive, as though fully set forth herein. 118. Plaintiffs bring this claim for relief on behalf of themselves, the Members of the Class.
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119. Defendants are engaged in interstate wireless communications for the purpose of furnishing communication services within the meaning of § 201(a) of the Federal Communications Act (“FCA”), 47 U.S.C. § 201, et seq.
120. Defendants’ practices complained of herein constitute unjust and unreasonable charges and practices in connection with communication service and, therefore, violate § 201(b) of the FCA. In addition, Defendants failure to make full and adequate disclosures of these practices to their customers violates CFR § 64.2401 and, therefore, violates §201(b) of the FCA.
121. Defendants have not filed its rates with the Federal Communication Commission. 122. As a direct and proximate result of Defendants’ violations of §201(b) of the FCA, Plaintiffs and the other Class Members have been damaged in amounts according to proof at trial.
SIXTH COUNT (Claim Under 42 U.S.C. § 1983 For Taking of Property Without Just Compensation In Violation of the Fifth Amendment) 123. Plaintiffs repeat and incorporate herein by reference each and every allegation in paragraphs 1 through 122, inclusive, as though fully set forth herein. 124. As is set forth above, Defendants are in a position to charge the excessive rates for telephone calls and impose unconscionable rates and fees because of their exclusive contracts with the State of New Jersey and various New Jersey Counties. 125. Those contracts set the rates Defendants charge for making telephone calls from the facility or facilities subject to the contract, and further provide that Defendants will pay a percentage of the gross revenue (excluding certain collected taxes and fees) derived by Defendants as a result of the contract which shall be paid to the contracting governmental entity.
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126. Those percentages of revenue paid by Defendants to the governmental entities range from 40% in the case of the State of New Jersey to 60.5% in the case of Bergen County.
127. Upon information and belief, the percentage of revenue and per-minute calling rates are agreed to as part of the process whereby the governmental entity contracts with the qualified bidder who will pay the highest revenue to the governmental entity.
128. Defendants act under color of law for purposes of 42 U.S.C. § 1983. 129. At all times pertinent hereto, Defendants have acted with the help of and in concert with state officials in that they were given the exclusive right to provide telephone services for inmates housed in the respective detention facilities. 130. Controlling access to and communications with incarcerated persons is a traditional governmental function. 131. But for the fact that Defendants have exclusive contracts with governmental entities to provide phone services to persons incarcerated within that entity’s jurisdiction, Defendants would not be able to charge the excessive per-minute rates and unconscionable fees and charges to Plaintiffs and other Class Members because they would otherwise be able to purchase substitute phone service elsewhere at a significantly lower costs. 132. The entities represented by the aforementioned state officials receive a substantial benefit from the unlawful activities of Defendants when the governmental entities are paid a portion of the revenues generated by the charges imposed by Defendants. 133. The governmental entities’ are encouraged by Defendants to turn a blind eye to, Defendants’ imposition of unconscionable fees and charges on top of the already unconscionable per-minute charges for telephone calls.
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134. Defendants’ excessive and unconscionable charges constitute a taking of property from the Plaintiffs without just compensation and is contrary to the Fifth Amendment of the Constitution.
135. Plaintiffs and other Class Members have a property interest in their money. 136. The calling time that Plaintiffs and other Class members receive is not just and adequate compensation for the unconscionably excessive per-minute charges for phone calls imposed by Defendants. 137. In addition, as is set forth above, the other fees and charges imposed by Defendants, such as the 20% set-up fee, the per-call connection fee, the $5.00 refund charges, inactivity fees and the forfeiture of unused accounts, are likewise a taking of property without just compensation because those charges are grossly in excess of any benefit provided. 138. The State and Counties have delegated authority to the Defendant’s sufficient that the Defendants’ forfeiture actions and takings of the Plaintiffs’ money is an illegal taking by virtue of State action with the meaning of 42 U.S.C. §1983. 139. As a result of the imposition of the foregoing unlawful charges and fees, Plaintiffs and other Class Members have been damaged.
SEVENTH COUNT (Declaratory Relief Under The Declaratory
Judgment Act, 28 U.S.C. § 2201, et seq.) 140. Plaintiffs repeat and incorporate herein by reference each and every allegation in paragraphs 1 through 139, inclusive, as though fully set forth herein. 141. Plaintiffs bring this claim for relief on behalf of themselves and other similarly situated prisoners and detainees.
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142. An actual controversy has arisen and now exists between Plaintiffs and the other Class Members, on one hand, and Defendants, on the other hand, concerning their respective rights and duties in that Plaintiffs and the other Class Members contend that Defendant has engaged in and are continuing to engage in the unlawful practices alleged herein and have failed and continue to fail to make full and adequate disclosures to their customers concerning these practices, while Defendant apparently will contend that their actions and conduct are lawful and proper.
143. A judicial declaration is necessary and appropriate at this time, under the circumstances presented, in order that Plaintiffs and the other class members may ascertain their rights and duties with respect to Defendant’s practices.
WHEREFORE, Plaintiffs pray for judgment as follows: (a) For compensatory damages; (b) For treble damages in accordance with the New Jersey Consumer Fraud Act; (c) For an Order enjoining Defendants from engaging in the practices alleged herein and/or mandating that Defendants make full and adequate disclosures to their customers concerning these practices. (d) For disgorgement and restitution to Plaintiffs and the other Members of the Class of all monies wrongfully obtained by Defendants; and (e) For prejudgment interest on the monies wrongfully obtained by Defendants from the date of collection through the date of entry of judgment in this action;
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(f) For all attorneys’ fees, expenses and recoverable costs reasonably incurred
in connection with the commencement and prosecution of this action in accordance with
the Consumer Fraud Act and 42 U.S.C. § 1988; and
(g) For such other and further relief as the Court deems just and proper.
CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO PC Attorneys for Plaintiffs

By: /s/ James E. Cecchi JAMES E. CECCHI
WALDER, HAYDEN & BROGAN, P.A. Attorneys for Plaintiffs

Dated: August 20, 2013

By: /s/ James A. Plaisted JAMES A. PLAISTED

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JURY TRIAL DEMAND
Plaintiffs request jury trial on all issues so triable.
CARELLA, BYRNE, CECCHI, OLSTEIN, BRODY & AGNELLO PC Attorneys for Plaintiffs

By: /s/ James E. Cecchi JAMES E. CECCHI
WALDER, HAYDEN & BROGAN, P.A. Attorneys for Plaintiffs

Dated: August 20, 2013

By: /s/ James A. Plaisted JAMES A. PLAISTED

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 Case 2:13-cv-04989-WJM-MF Document 35 Filed 09/08/14 Page 1 of 11 PageID: 433

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

BOBBIE JAMES et al.,
Plaintiffs,
v.
GLOBAL TEL*LINK CORPORATION, INMATE TELEPHONE SERVICE, and DSI-ITI LLC,
Defendants.

Docket No.: 13-4989-WJM-MF OPINION

WILLIAM J. MARTINI, U.S.D.J.:
This is a putative class action involving the fees charged for phone calls originating from prison pay phones in the state of New Jersey. Defendants filed a motion pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the Complaint. For the reasons set forth below, the motion is hereby denied.
I. BACKROUND
a. Allegations of the Complaint
Defendants provide managed telecommunications services at state and local correctional facilities in New Jersey so inmates can communicate with family members, friends, attorneys, and other approved persons outside the correctional facilities. (Complaint at ¶ 12) Defendants are three corporate entities that operate as a single economic unit with respect to the telecommunications services relevant to the Complaint. (Complaint at ¶ 15) Defendants have the sole right to provide telecommunications services for people incarcerated in certain New Jersey state and county prison and detainee facilities. (Complaint at ¶ 16)

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Plaintiffs are all people who had to use the Defendants’ services in order to communicate with a friend or family member.1 Plaintiffs allege that Defendants charged illegally and unconscionably high and undisclosed rates and fees to a captive market. (Complaint at ¶ 22) Plaintiffs filed a Complaint with seven causes of action: (1) violation of the New Jersey Consumer Fraud Act (“NJCFA”); (2) violations of certain sections of the NJCFA and N.J.A.C. § 45A-803; (3) violation of the New Jersey public utilities statutes (N.J.S.A. § 48-3.1 and 3.2); (4) unjust enrichment; (5) violation of the Federal Communications Act, 47 U.S.C. § 201 (“FCA”); (6) violation of the Takings Clause of the Fifth Amendment; and (7) declaratory judgment.
Plaintiffs allege that the State of New Jersey benefits financially from the Defendants’ monopoly. (Complaint at ¶¶ 17-19) Specifically, Defendants remit to the state 40% of the rates charged and 50% or more to the counties of Hudson, Bergen, Essex, and Monmouth. (Complaint at ¶¶ 18-19) New Jersey receives $4.42 million per year as its percentage of revenue pursuant to its contract with Defendants. (Complaint at ¶ 19)
The Complaint alleges that Defendants purchase their minutes for calls terminating within the United States for less than 3/10 of a penny per-minute, and Defendants often resell the minutes they buy at more than 100 times their cost to Plaintiffs and other Class Members. (Complaint at ¶ 23) The market rate for competitively priced prepaid calling cards is approximately 1¢ to 2¢ per minute for calls within the United States. Depending upon the country being called, the rates for international calls can be as low as 1¢ per minute. Defendants, however, charge approximately 30¢ per minute for calls within the United States. The Complaint also alleges that Defendants charge exorbitant rates for international calls. (Complaint at ¶ 24)
Plaintiffs allege that Defendants’ customers establish their accounts over the phone. (Complaint at ¶ 25) When a prisoner wishes to call someone outside the detention facility, they must place a collect call to that person. (Id.) The called person hears a series of automated prompts to set up an account with Defendants in order to accept the call. (Id.) The same automated procedures are followed when customers seek to open an account by calling the Defendants’ 800 number provided at the prison facility to customers. (Id.)
1 Four Plaintiffs are residents of New Jersey. Plaintiffs John Crow and Barabara Skladany are residents of New York. Plaintiff Milan Skladany was a resident of New Jersey until 2011, when he returned to the Slovak Republic. Defendants are privately held Delaware corporations with principal places of business in Alabama. (Complaint at ¶ ¶ 6-16)
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Using standardized scripts and prompts, the Defendants’ system sets up an account for the customer or called person using a credit or debit card provided by the customer. (Complaint at ¶ 26) These accounts must be set up in amounts of $25, $50, or $100. (Complaint at ¶ 26) After the account is set up, the called person is then provided with a PIN so he or she may accept calls from the prisoner in the future, and charges for all calls are deducted from the called person’s account. (Complaint at ¶ 26)
The Complaint alleges that Defendants tell customers that no information on rates and charges are available until they have an account number. (Complaint at ¶ 27) Defendants do not provide customers with a written contract when they establish an advance pay account with Defendants by telephone, nor are they advised of any of the terms and conditions applicable to their accounts. (Complaint at ¶ 28)
The Complaint alleges that Defendants do not issue account statements in writing or electronically to customers in the ordinary course of business. When making or receiving a call, customers hear a voice prompt advising them how much money is left in their accounts, but customers cannot obtain an itemized statement of charges to their accounts, nor can customers determine how many minutes of calling time they have left because Defendants do not disclose rates and applicable charges. (Complaint at ¶ 29)
The Complaint alleges that Defendants fail to inform their customers that they will be charged a service or set-up fee which will be deducted from their advance pay balance when an account is first established. (Complaint at ¶ 30)
The Complaint alleges that Defendants charge an unconscionable service fee of approximately 20% of the deposit, i.e. $4.75 out of the first $25.00 deposit, $9.50 out of the first $50.00 deposit, and $19.00 out of the first $100.00 deposit when an account is first established. (Complaint at ¶ 31)
The Complaint alleges that Defendants fail to inform their customers when an account is first established that they will be charged fees (a per-call transaction or connection fee) for each call placed in addition to the call rates per minute. (Complaint at ¶ 32) Defendants charge upwards of $1.75 per call as a connection or transaction fee. (Complaint at ¶ 33)
The Complaint alleges that Defendants charge a $5.00 fee to close an account and obtain a refund of any remaining balance. However, Defendants fail to inform
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their customers when an account is first established that they will be charged this additional service fee to close the account. (Complaint at ¶ 34)
The Complaint alleges that Defendants fail to inform their customers when an account is first established that their account balances will be forfeited if they do not use Defendants’ service for a 90-day period. (Complaint at ¶ 35)
The Complaint alleges that Defendants fail to inform their customers when an account is first established that a monthly inactivity fee will be charged against their account for any months when it is not used. (Complaint at ¶ 36)
The Complaint alleges that because customers must purchase calling time in multiples of $25, $50, or $100 and must establish an account in advance of paying for calls, it is inevitable that customers will not use the exact amount of money in their account. As a result, every customer will incur either the $5.00 fee to close their account or will forfeit their account as a result of it being inactive for 90 days. (Complaint at ¶ 37)
The Complaint alleges that Defendants also fail to advise customers that the customer’s account may be frozen if Defendants deem the amount remaining in the account to be too little to accept calls from an inmate. In order to unfreeze the account so he or she can receive calls, the customer must recharge his or her account, while incurring service charges of 20% of the amount deposited in doing so. (Complaint at ¶ 38)
b. New FCC Regulations
Since Plaintiffs filed this Complaint, the Federal Communications Commission (“FCC”) issued a series of regulations (“the new regulations”) that appears to address the issues in this case in a manner unfavorable to Defendants. 78 Fed. Reg. 67956. On November 12, 2013, the FCC stated that inmate calling service (“ICS”) rates and charges were frequently unjust, unreasonable, and unfair, and therefore in violation of the Federal Communications Act. 78 Fed. Reg. 67956. The new regulations were designed to “provide relief to the millions of Americans who have borne the financial burden of unjust and unreasonable interstate inmate phone rates.” Id. The new regulations mandate that ICS rates and ancillary services be cost-based. In preparation of the new regulations, the FCC conducted a study about what the fair cost-based rates of ICS services would be. As a result of this study, the FCC created interim safe-harbor ICS rates. Rates below 12¢ per minute for prepaid interstate calls are presumptively reasonable. The new regulations imposed an
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interim rate cap of 21¢ per minute for interstate prepaid calls. The new regulations also banned the practice of recovering site commission payments – fees paid by ICS providers to the state in order to win exclusive rights to provide their services – through ICS rates or ancillary charges.
The Commission notes in the Federal Register that it is in the process of seeking additional information that could result in revisions of the new regulations. 78 Fed. Reg. 67957. The new regulations also require ICS providers to submit data on their underlying costs so that the Commission can develop a permanent rates structure. Id.
On November 14, 2013, Defendants appealed the new regulations in the D.C. Circuit. Global Tel*Link v. FCC, No. 13-1281. On January 13, 2014, the D.C. Circuit stayed 47 C.F.R. § 64.6010 (cost-based rates and fees), 47 C.F.R. § 64.6020 (interim safe harbor rates), and 47 C.F.R. § 64.6060 (annual reporting requirements) pending the outcome of the appeal. The Defendants, along with similarly-situated ICS companies from around the country, are appealing the FCC’s new regulations as being unlawful for a variety of reasons. (See Global Tel*Link v. FCC, No. 131281, Document # 1494131)
Moreover, on August 8, 2014, the Defendants notified this court that in July 2014, the New Jersey Board of Public Utilities (“BPU”) issued a Notice of Action (“Notice”) on a Petition for Rulemaking filed by a group of prisoners, prisoners’ families, and prisoners’ rights groups. (ECF No. 30) The Petition asked the agency to set rate caps for intrastate inmate calls at 5¢ per minute. (Id.) In its Notice, the BPU stated that it “has been considering this petition and is still reviewing the merits of the petitioner’s suggested new rules” and that it will continue this deliberation until October 31, 2014. (Id.) At that time, the BPU will finalize its Notice of Action on the petition. (Id.)
II. JURISDICTION
This court has original jurisdiction over this class action pursuant to 28 U.S.C. § 1332(d) (“Class Action Fairness Act”) because the matter in controversy exceeds the sum or value of $5,000,000 exclusive of interest and cost, there are at least one hundred members of the proposed class, and at least one member of the proposed class is a citizen of a different state than the Defendants. Jurisdiction is also proper in this court pursuant to 28 U.S.C. § 1331 because this matter involves federal questions under 47 U.S.C. § 201 and 42 U.S.C. § 1983. The court has supplemental
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jurisdiction over Plaintiffs’ state law claims because they arise from “a common nucleus of operative facts.” Lyon v. Whisman, 45 F.3d 758, 760 (3d Cir. 1995).
III. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss under Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in the light most favorable to the plaintiff. See Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998) (citing Warth v. Seldin, 422 U.S. 490, 501 (1975)).
Although a complaint need not contain detailed factual allegations, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual allegations must be sufficient to raise a plaintiff’s right to relief above a speculative level, such that it is “plausible on its face.” See id. at 570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). “[D]etermining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 663-64 (2009). A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). While “[t]he plausibility standard is not akin to a ‘probability requirement’ . . . it asks for more than a sheer possibility.” Id. at 678.
IV. DISCUSSION
Defendants’ main argument on this motion to dismiss is that the court should abstain from hearing the case on the grounds that the FCC has primary jurisdiction. This argument is pointed at Plaintiffs’ cause of action for a violation of the Federal Communications Act. While the court agrees that the FCC has primary jurisdiction over certain issues in this case, it will stay the case rather than dismiss it.
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a. Federal Communications Act
Plaintiffs claim that Defendants violated 47 U.S.C. § 201(b), which states: “All charges, practices, classifications, and regulations for and in connection with [a common carrier] communication service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is declared to be unlawful.”
Section 207 of the FCA creates a private cause of action for Plaintiffs seeking recovery for a violation of Section 201. Section 207 provides that:
[a]ny person claiming to be damaged by any common carrier subject to the provisions of this chapter may either make complaint to the Commission as hereinafter provided for, or may bring suit for the recovery of the damages for which such common carrier may be liable under the provisions of this chapter, in any district court of the United States of competent jurisdiction; but such person shall not have the right to pursue both such remedies.
47 U.S.C. § 207.
Plaintiffs have elected the option of bringing suit in district court. Construing Sections 201 and 207 together, the Plaintiffs demonstrate liability under the FCA if they can prove that Defendants’ conduct was “unjust or unreasonable.” For the reasons set forth below, this court will not determine whether the challenged conduct was “unjust or unreasonable” under Section 201. That is an issue determination that is better left for the FCC to make in the first instance. Plaintiffs may file an administrative complaint with the FCC for determination of the issue without losing their right to pursue damages in this court. See Raritan Baykeeper v. NL Indus., Inc., 660 F.3d 686, 691 (3d Cir. 2011); Waudby v. Verizon Wireless Services, LLC, No. 07470, 2007 WL 1560295, at *5 (D.N.J. May 25, 2007).
b. Primary Jurisdiction
Defendants argue that the court should, pursuant to the doctrine of primary jurisdiction, dismiss the case because the FCC has primary jurisdiction to determine whether the challenged charges and practices are “just and reasonable” under the FCA. The court agrees that the FCC has primary jurisdiction; however, the court
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finds that staying the case, rather than dismissing it, is the appropriate course of action.
The doctrine of primary jurisdiction, despite its name, does not implicate the jurisdiction of a federal court. Rather, it is a principle of judicial administration designed to achieve coordination between administrative agencies and the courts. Puerto Rico Mar. Shipping Auth. v. Valley Freight Sys., Inc., 856 F.2d 546, 549 (3d Cir. 1988) (citing Cheyney State College Faculty v. Hufstedler, 703 F.2d 732, 736 (3d Cir. 1983)). “The doctrine is a ‘prudential’ one, under which a court determines that an otherwise cognizable claim implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch.” Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008).
“The doctrine of primary jurisdiction applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” Raritan Baykeeper v. NL Indus., Inc., 660 F.3d 686, 691 (3d Cir. 2011) (citing United States v. W. Pac. R.R. Co., 352 U.S. 59, 64 (1956)). If the court applies the doctrine of primary jurisdiction, the judicial proceedings are suspended pending the agency’s adjudication of the issue within the agency’s special competence. Id.
The term “referral” is something of a misnomer in this case because there is no mechanism here for the court to request or demand that the FCC decide an issue. See Reiter v. Cooper, 507 U.S. 258, 269 n. 3 (1993). Rather the court here considers whether it should stay the proceedings to allow the filing of an administrative complaint. Id.
Four factors should be considered in deciding whether to refer an issue to an administrative agency: (1) whether the issues presented fall within the “conventional expertise” of judges; (2) whether the issues are within the agency’s discretion or require the exercise of the agency’s expertise; (3) whether there are any dangers of inconsistent rulings between the courts and agency; and (4) whether a prior application has been made to the agency. Oh v. AT&T Corp., 76 F. Supp. 2d 551, 557 (D.N.J. 1999).
Cases involving “abstract statutory terms such as ‘reasonable’” are particularly well suited for transfer to an administrative agency.” Demmick v. Cellco Partnership, 2011 WL 1253733, at *5 (D.N.J. March 29, 2011). This is particularly
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true for the meaning of “reasonable” under Section 201 of the FCA. Oh, 76 F. Supp. 2d at 557 (stating that courts “have consistently found that claims which allege unreasonable practices in violation of § 201(b) [of the FCA] fall within the primary jurisdiction of the FCC.”); Demmick, 2011 WL 1253733, at *6 (“[R]easonableness determinations under § 201(b) [of the FCA] lie within the primary jurisdiction of the FCC, because they involve policy considerations within the agency’s discretion and particular field of expertise.”).
Primary jurisdiction should be used sparingly because it can result in added expense and delay. Alpharma, Inc. v. Pennfield Oil Co., 411 F.3d 934, 938 (8th Cir. 2005); Waudby v. Verizon Wireless Services, LLC, No. 07-470, 2007 WL 1560295, at *4 (D.N.J. May 25, 2007) (“[C]ourts must balance the advantages of applying the primary jurisdiction doctrine against the potential costs resulting from complications and delay in the administrative proceedings.”). When “the matter is not one peculiarly within the agency’s area of expertise, but is one which the courts or jury are equally well-suited to determine, the court must not abdicate its responsibility.” Raritan Baykeeper v. NL Indus., Inc., 660 F.3d 686, 691 (3d Cir. 2011). Where the issue is simply one of whether a rule has been violated, primary jurisdiction should not be applied, but where the question is whether an act is reasonable, primary jurisdiction should be applied. See Williams Pipe Line Co. v. Empire Gas Corp., 76 F.3d 1491, 1497 (10th Cir. 1996); U.S. v. Elrod, 627 F.2d 813, 818 (7th Cir. 1980).
Plaintiffs argue that primary jurisdiction is inapplicable because the FCC has already determined the issue of reasonable ICS rates. If the only issue were whether the Defendants had violated the new regulations, then indeed, primary jurisdiction would be inapplicable. See Williams Pipe Line Co. v. Empire Gas Corp., 76 F.3d 1491, 1497 (10th Cir. 1996); U.S. v. Elrod, 627 F.2d 813, 818 (7th Cir. 1980). However, the issue is not whether the Defendants have violated the new regulations, but whether their charges and practices prior to the issuance of the new regulations violated the FCA, 47 U.S.C. § 201. Moreover, due to the pending appeal in the D.C. Circuit, it is not clear that the new regulations will even remain in place.
Under these circumstances, the first three primary jurisdiction factors weigh heavily in favor of its application. The reasonableness of the Defendants’ charges and practices under the FCA “implicates technical and policy questions” that the FCC has the special expertise to decide in the first instance. Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir. 2008). Likewise, the issue of whether ICS rates are “just and reasonable” under the FCA falls outside the conventional expertise of judges. There is a great danger of inconsistency between the court and the FCC if this case proceeds without the FCC first determining whether the Defendants’
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charges and practices were reasonable under the FCA prior to the issuance of the new regulations.
The fourth factor has little weight here. Although the FCC issued its new regulations because of prior complaints about practices like the Defendants’ rates and charges, see 78 Fed. Reg. 67956, the FCC did not address the exact charges and practices of these Defendants. Nor is it clear whether the FCC intended that the new regulations apply retroactively. For these reasons, the court will stay the case until the FCC determines whether Defendants’ charges and practices prior to the new regulations violated the FCA.
c. Scope of the Stay
Plaintiffs urge the court to stay only the FCA cause of action while discovery commences on the other causes of action. In this jurisdiction, we find no cases where the court merely stayed an FCA cause of action pursuant to primary jurisdiction while allowing the other causes of action to go forward. See, e.g., Oh v. AT&T Corp., 76 F. Supp. 2d 551, 557 (D.N.J. 1999); Demmick v. Cellco Partnership, 2011 WL 1253733, at *5 (D.N.J. March 29, 2011); Waudby v. Verizon Wireless Services, LLC, No. 07-470, 2007 WL 1560295, at *4 (D.N.J. May 25, 2007).
We find one case from the District of Kansas, In re Universal Service Fund Telephone Billing Practices Litig., 300 F. Supp. 2d 1107, 1153 (D. Kan. 2003), where the court did refer an FCA cause of action while allowing three other causes of action to proceed to discovery. The Universal Service Fund case does not, however, provide an analogy that warrants deviating from the usual custom within this district. In Universal Service Fund, the causes of action that the court permitted to proceed to discovery were not related to acts subject to review by the FCC. In this case, by contrast, all causes of action arise from the same charges and practices, and the FCC can review all of these actions for reasonableness under the FCA.
The facts of this case are more similar to Waudby v. Verizon Wireless Services, LLC, No. 07-470, 2007 WL 1560295, at *4 (D.N.J. May 25, 2007). In that case, Plaintiffs brought a putative class action against Verizon, alleging that its early termination fees violated both state law and the FCA. The court in Waubdy elected to stay the entire case, finding that allowing the FCC first to rule on the challenged actions “would promote uniformity and consistency in its regulation of the telecommunications industry.” Id., at *7 (citing Kiefer v. Paging Network, Inc., 50 F. Supp. 2d 681, 683 (E.D. Mich. 1999)). Staying the proceedings until after the FCC rules on the reasonableness issue prevents the court from “interfering with or
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contradicting any FCC rulings and [allows] the Court to address remedy issues left open after the FCC decision.” Id., at * 5.
While the FCC’s determination in this case is not dispositive to any of the non-FCA causes of action, its determination could influence the ultimate outcome of the other causes of action. Moreover, the overhanging uncertainty about the FCC’s determination could make discovery on the other causes of action more contentious than necessary. For these reasons, we consider it more prudent to follow the other courts in our district and stay the entire case until the FCC rules on the reasonableness of the Defendants’ charges and practices, or the Plaintiffs drop the FCA cause of action.
As noted above, there is no legal mechanism for this court to “refer” the case to the FCC. Moreover, Plaintiffs suggested at oral argument that they may not seek the FCC’s determination on the reasonableness of the challenged charges and practices even if the court stays the case for them to do so. Because such inaction on the part of the Plaintiffs would cause further undue delay, we add the following directive to the opinion and order to effectuate a “referral:” that Plaintiffs shall file an administrative complaint with the FCC within 90 days of the D.C. Circuit’s filing of the opinion in the pending appeal, Global Tel*Link v. FCC, No. 13-1281. If Plaintiffs fail to do so, the Defendants may petition the court to dismiss the FCA cause of action for lack of prosecution.
V. CONCLUSION
For the reasons set forth above, the Defendants’ motion to dismiss is denied. The case is stayed until the FCC determines whether the challenged charges and practices violated the FCA, 47 U.S.C. § 201, the Plaintiffs voluntarily dismiss the FCA cause of action, Plaintiffs fail to file an administrative complaint with the FCC within 90 days of the filing of the D.C. Circuit’s opinion in the pending appeal (Global Tel*Link v. FCC, No. 13-1281), or either party petitions the court with other good cause for lifting the stay.

Date: September 8, 2014

/s/ William J. Martini ______________________________ WILLIAM J. MARTINI, U.S.D.J.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

BOBBY JAMES, et al., on behalf of themselves and all others similarly situated, ,
Plaintiffs,
v.
GLOBAL TEL*LINK CORP., INMATE TELEPHONE SERVICE, and DSI-ITI LLC,
Defendants.

Docket No.: 13-4989 OPINION

WILLIAM J. MARTINI, U.S.D.J.:
Plaintiffs bring this action against Defendant Global Tel*Link and its subsidiaries (collectively, “GTL”) in connection with GTL’s provision of inmate calling services (“ICS”) to State and county correctional facilities in New Jersey. Plaintiffs move pursuant to Federal Rule of Civil Procedure 23 to certify claims under (1) the New Jersey Consumer Fraud Act (“CFA”) (Count One) and (2) the Takings Clause of the Fifth Amendment (Count Six). There was no oral argument. Fed. R. Civ. P. 78(b). For the following reasons, the Court GRANTS the Plaintiffs’ motion for class certification of Counts One and Six.
I. BACKGROUND
GTL provides ICS to all prisons and jails operated by the State of New Jersey and to each county facility except Passaic. These include 20 New Jersey Department of Corrections (“DOC”) facilities and 21 county facilities.1 See Taylor Decl. Supp. Class Cert. (“Taylor Decl.”), Ex. E, Expert Report of Michael F. Finneran (“Finneran Report”).
1 Altogether, New Jersey facilities generate roughly five percent of GTL’s revenue. See Finneran Report at 2.
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In 2005, the DOC conducted a competitive procurement process to select an exclusive ICS provider to all state correctional facilities and most counties. The process began with a Request for Proposal (“RFP”) detailing mandatory technical specifications tailored to the unique logistical and security requirements of ICS. The RFP sought the proposal “that best represents, in its opinion, the most advantageous solution for the State [based on] price and other factors.” Van Nostrand Decl., Ex. 11. As is typical of procurement, the terms and conditions set forth in the RFP (or “the Solicitation”) became the terms of the agreement, to be implemented according to the winning proposal. See N.J. Contract 61618 (“All terms and conditions as a part of Solicitation 32533 . . . and also including the bidder’s proposal as accepted by the State are included herein . . .”); Taylor Decl., Ex. J, Expert Report of Melissa J. Copeland (“Copeland Report”). Accordingly, “RFP” and “contract” are used interchangeably unless stated otherwise.
AT&T won the bid in April 2005 and assigned the contract to GTL in June of 2005, though GTL did not assume operations until 2006.2 Van Nostrand Decl., Ex. 11; Copeland Report, n. 1, 5. In addition to governing ICS for the DOC facilities, the RFP extended to thirteen county facilities. See RFP, Attachment 1.3 Additional counties, including Essex and Bergen, procured services independently by issuing their own RFPs; these contracts resembled the main DOC contract in their use of large commissions, high calling rates, and other ancillary fees. See infra. The parties have stipulated to the rates and fees charged by GTL during the class period, which begins in 2006. See Taylor Dec., Ex. K.
A. Site Commissions
One essential term of the DOC and county contracts was that GTL pay the government site commissions (“commissions”), defined by the RFP as “a straight percentage of all originating, billable revenue.” Taylor Decl. Ex. J, Copeland Report at 5. Site commissions are calculated by multiplying minutes by calling rate, then multiplying that product by the commission percentage. They are not based at all on ancillary fees, such as account setup and deposit fees.
GTL’s winning proposal offered the DOC (and participating counties) six billing options, each comprised of a commission rate and a calling rate. Higher commission rates were paired with higher calling rates. Ex 2, ¶ 25. Commissions ranged from 0% to 53%. The DOC selected a commission rate of 40% (later adjusted to 41%). Counties
2 Several counties awarded contracts to DTS-ITI, which was purchased by GTL in 2010. Taylor Ex. G, Yow Dep. Tr. 221:6-222:2. 3 The counties included Atlantic, Burlington, Camden, Cape May, Gloucester, Hudson, Hunterdon, Mercer, Monmouth, Morris, Ocean, Somerset, and Union. See RFP, Attachment 1. Of these thirteen counties, Hudson housed the most inmates at the time the RFP was issued (1833), and Burlington housed the fewest (42). See id. All other counties except for Passaic formed contracts with GTL (or one of its subsidiaries) independently.
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participating in the DOC RFP overwhelmingly chose one of the two options with the highest commission and calling rate combinations. See, e.g., Taylor Decl., Ex. K. In 2006, for instance, Camden and Somerset counties chose Option 2, with a 53% commission rate. See, e.g. Copeland Report at 6. GTL paid an average commission of 46% for all New Jersey contracts in 2009. See Rebuttal Report of Dr. Roy J. Epstein (“Epstein Rebuttal”) ¶ 69.
Counties choosing to issue their own RFPs similarly emphasized generating revenue through site commissions. See Epstein Rebuttal ¶ 25. Atlantic County’s 2007 RFP stated that it would reward the ICS contract to “the responsive and responsible bidder offering the Highest Commission Rate to the County,” which could be not less than 50 percent. Id. at ¶ 27. In short, there is no disputing that commissions were an attractive revenue source for the State, counties, and GTL, and that commissions formed a central role in the procurement process. See, e.g., Decision Memorandum, Essex County, Ex. H. Van Nostrand Decl. (“[T]his is a revenue generating arrangement.”). Indeed, GTL’s CFO, Stephen Yow, agreed that site commissions were probably the most important feature of ICS service agreements. Yow Dep. Tr. 42:4-5.
B. Ancillary Fees
Not only did commissions lead to higher calling rates, they also incentivized GTL to impose higher ancillary fees to make up for revenue paid out in commissions. As Mr. Yow explained, “imposing deposit fees is a way to generate enough revenue from the facility to administer the commission they’re expecting and also to cover all the other costs that we have to provide the service in that jail.” Yow Dep. 170:16-20; see, e.g.. Epstein Rebuttal (“[D]eposit fee revenue can be used to recoup site commissions paid to facilities.”). Most notably, GTL charged a 19% fee4 each time a non-inmate set up or deposited funds into a GTL Advance Pay account.5
C. Excessive Calling Rates and Ancillary Fees
Plaintiffs argue that ICS charges and fees were many times greater than the costs to GTL of providing ICS. For instance, “[d]uring the class period, GTL was charging as much as $1.00 per minute for calling time that it was paying as low as .018¢ per minute.” Pls.’ Br. Supp. Cert. at 1. Because the ICS contracts made GTL the exclusive provider, Plaintiffs—unlike normal telephone users—could not choose among different providers, and generally paid amounts far in excess of prevailing industry rates and fees. They argue that what emerged was a sanctioned, unregulated monopoly that generated substantial
4 A minority (10-15 percent) of class members avoided this fee by using alternative payment methods, such as sending a check by mail, using Western Union, or (at certain facilities) paying on-site kiosks. Baker Dep. Tr. 37:8-38:11. 5 An Advance Pay account is simply a prepaid account set up by a non-inmate (usually a family member) allowing the inmate to use funds to call a particular number or set of numbers.
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revenue for the government and GTL by imposing excessive charges and fees on inmates and their loved ones. See M. Skladany Dep. Tr. 28:23-25 (“[P]eople were always . . . talking about the phone rates, how outrageous and, you know, felt like we were being extorted.”). As the state legislature has found, “where a captive market exists for competitive telecommunications services, market conditions are not always able to protect the public interest.” N.J.S.A. § 48:2-21.22. Many Plaintiffs likely chose to incur these charges out of sheer desperation for contact with their loved ones. See, e.g., King Dep. Tr. 111:17-112:9.
Whether the charges and fees bore any relationship to the cost of providing ICS services is the subject of competing expert testimony. Mr. Finneran states that GTL charged between $0.05 and $0.89 per minute for calls that GTL itself was purchasing from carriers at a tiny fraction of those costs. Taylor Decl., Ex. F., Rebuttal Report by Michael Finneran, at 4-5. Michael Barth, Director of Network Planning & ContractsOperations at GTL, testified that bulk rates could be purchased by GTL as low as $0.00018. Taylor Decl., Ex. I, Declaration of Michael Barth. Dr. Roy J. Epstein, hired to challenge Mr. Finneran’s report, cautioned against viewing any one particular cost or fee in isolation. Epstein Dep. Tr. 79:11-25. Dr. Epstein also stated that providing ICS services requires specialized security and logistical costs, which are missing from Mr. Finneran’s analysis.6 Epstein Report ¶ 5. Not surprisingly, however, the largest “costs” Dr. Epstein identified were site commissions. See id. ¶¶ 9-10. Mr. Finneran’s Rebuttal Report responds that “while the specialized call handling features . . . may have been expensive to develop 10 or 15 years ago, they are now available from cloud-based providers at far lower cost.” Taylor Decl., Ex. F.
D. Recent Decline in ICS Calling Rates and the Elimination of Site Commissions
Phone rates for New Jersey inmates have declined dramatically since the original GTL-DOC contract ended in 2010. That same year, the DOC eliminated commissions for State facilities, though county facilities participating under the DOC contract continued to collect commissions into 2014. See Epstein Report ¶ 25. From June 2010 to February 2014, GTL dropped rates for calls from State institutions to a flat rate of 33 cents per minute. As of July 30, 2015, after several additional reductions, the rate for all calls from State institutions was 4.384 cents per minute. Taylor Dec., Ex. K. Meanwhile, FCC regulations effective in February 2014 capped interstate call rates, causing GTL to drop the interstate call rate from county jails to 21 cents per minute for prepaid calls and 25 cents per minute for collect calls.7 Intrastate calling rates from certain county facilities
6 See Epstein Report ¶ 10. (explaining that ICS differs from normal services because it requires a system “to limit the number of calls placed by an inmate based on number of calls per day, number of calls per week, number of calls per month, cost of completed calls per day, cost of completed calls per week, cost of completed calls per month, or any combination thereof.”). 7 These FCC rate caps were ultimately struck down by Global Tel*Link v. FCC, 866 F.3d 397,
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remained unchanged until their contracts expired at various points in mid-to-late 2016. GTL now charges roughly 5 cents per minute for all calls. Taylor Dec., Ex. K.
E. Procedural History before this Court
Plaintiffs filed this action in August 2013 alleging violations of the New Jersey Consumer Fraud Act (“CFA”), the Federal Communications Act (“FCA”), the Takings Clause of the Fifth Amendment, the New Jersey Public Utilities statute, as well as alleging unjust enrichment, and seeking declaratory relief. ECF No. 1. On February 11, 2016, the Court granted Defendants’ motion to compel arbitration for one Plaintiff, Crystal Gibson, but denied that motion with respect to the remaining Plaintiffs.8 Plaintiffs expressed frustration with GTL’s “pattern of promising to produce discovery and missing its own self-selected deadlines.” See Letter of Lindsay Taylor, ECF No. 133. Nevertheless, Judge Falk’s July 2017 scheduling order set a December 1, 2017 deadline for discovery, which included depositions of several expert witnesses. ECF No. 136. The parties met for a brief status conference before the Court on March 15, 2018. ECF No. 157.
On February 27, 2018, Plaintiffs moved to certify their class for the purposes of two claims: (a) GTL’s alleged violation of the CFA, N.J.S.A. § 56:8-2, by charging unconscionable rates and fees, and (b) alleged violations of the Takings Clause of the Fifth Amendment. U.S. Const. amend. V. They propose the following class:
All persons of the United States who, at any time since 2006 were incarcerated in a New Jersey prison or correctional institution who use or used the phone system provided by Defendants or, who established an advance pay account with Defendants in order to receive telephone calls from a person incarcerated in New Jersey, excluding Essex County prior to June 2010, or persons receiving calls from persons incarcerated in Essex County prior to June, 2011.9
On March 27, 2018, after opposing certification, Defendants moved for summary judgment on all counts. Plaintiffs filed an opposition and cross-motion for summary judgment on May 4, 2018. ECF No. 164. After several filing extensions at the request of Defense counsel, briefing on summary judgment concluded on June 8, 2018. The competing motions for summary judgment shall be addressed in a separate Opinion.
401 (D.C. Cir. 2017). 8 That decision was affirmed by the Third Circuit on March 29, 2017. ECF No. 126. 9 Claims relating to calls from Essex County before June 2010 are excluded because data is apparently unavailable. Since GTL’s 2010 acquisition of DSI-ITI, “Essex County’s calling records disappeared and Essex Count’s copies of its commission statements were destroyed in Hurricane Sandy.” Br. Supp. Cert. at n. 8, 7.
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II. DISCUSSION
“The trial court, well-positioned to decide which facts and legal arguments are most important to each Rule 23 requirement, possesses broad discretion to control proceedings and frame issues for consideration under Rule 23.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 310 (3d Cir. 2008), as amended (Jan. 16, 2009) (citations omitted). The Court finds that Plaintiffs have satisfied each requirement by a preponderance of the evidence. The following analysis begins with the four requirements of Rule 23(a) (numerosity, commonality, typicality, and adequacy), then proceeds to Rule 23(b)(3).
A. Fed. R. Civ. P. 23(a)
1. Numerosity
Numerosity is satisfied when joinder of all putative class members is impracticable. Fed. R. Civ. P. 23(a)(1). That is obviously true of this putative class, which includes many thousands of inmates and those who interacted with inmates by telephone over more than a decade.
2. Commonality
Rule 23(a)(2) requires that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). “Commonality does not require perfect identity of questions of law or fact among all class members. Rather, even a single common question will do.” Reyes v. Netdeposit, LLC, 802 F.3d 469, 486 (3d Cir. 2015) (citing Wal–Mart Stores, Inc., 131 S.Ct. at 2556 (quotation marks and alterations omitted)); Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 56 (3d Cir. 1994) (“The commonality requirement will be satisfied if the named plaintiffs share at least one question of fact or law with the grievances of the prospective class.”). Here, Plaintiffs attempt to resolve a number legal and factual questions.
To find Defendants liable under the CFA, the Court must find that Defendants engaged in “unconscionable commercial practices” that caused Plaintiffs economic damages. Plaintiffs must prove that GTL charged end users (i.e. inmates and their friends and family) rates and fees “grossly excessive in relation to [GTL’s] costs.” Kugler v. Romain, 279 A2d 640, 530 (N.J. 1971). Although the facilities charged different rates and fees, Plaintiffs argue that even the least expensive pricing scheme imposed on the class was excessive in light of the costs to GTL of providing service. Pls.’ Reply Br. at 3 (“All of the calling rates . . . ranging from between 40¢ per minute to over $1.00 per minute, were unconscionable, particularly since GTL was paying under 1 ¢ per minute.”). The Court agrees; it is highly unlikely that some of GTL’s pricing schemes were unconscionable under the CFA while others were not, since even the lower rates were many times greater than the alleged cost to GTL of providing services. Id. Differences in
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rates and fees across facilities are more relevant to calculating individual relief during claims administration.
As for the Takings claim, whether GTL was a state actor under § 1983 is a question whose answer will likely be common to all class members. See Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (citations omitted) (finding that a private company is a “state actor” when the “[s]tate has so far insinuated itself into a position of interdependence with the acting party that it must be recognized as a joint participant in the challenged activity.”) (citations omitted). Defendants argue that GTL’s fees and rates differed across facilities because the facilities had separate contracts with GTL. More importantly, however, all GTL contracts were predicated on the same essential revenuesharing arrangement, wherein “rate levels were directly tied to the amount of site commissions required.” Defs.’ Br. at 17. Whether these site commissions qualified as “significant encouragement” by the government sufficient to render GTL a state actor under § 1983 can be answered in common to all facilities. Kach, 589 F.3d at 648. In other words, GTL was a state actor with respect to all facilities or it was not a state actor at all. See Wal-Mart, 564 U.S. at 350-51.
3. Typicality
Certification requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The typicality inquiry is intended to assess whether the action can be efficiently maintained as a class and whether the named plaintiffs have incentives that align with those of absent class members so as to assure that the absentees' interests will be fairly represented.” Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994) (citations omitted). “[C]ases challenging the same unlawful conduct which affects both the named plaintiffs and the putative class usually satisfy the typicality requirement irrespective of the varying fact patterns underlying the individual claims.” Id. at 58. “Indeed, even relatively pronounced factual differences will generally not preclude a finding of typicality where there is a strong similarity of legal theories.” Id.
The Court finds that the named representatives assert claims that are typical of the class as a whole. Plaintiff Mark Skladany was incarcerated and used ICS at various state and county facilities in New Jersey during the class period. M. Skladany Dep. Tr. 31:1114, 51:15-16. He sometimes deposited money into his GTL account using his inmate commissary account. Id. at 44:23. Other times he relied on his family members to deposit funds into an Advance Pay account. Id. at 42:8-12. The other three representatives are non-inmates who opened GTL Advance Pay accounts in order to communicate with their incarcerated loved ones. They incurred the same 19% deposit fee as did other non-inmate class members. See, e.g., King Dep. 102:1-9. Most importantly, the representative Plaintiffs exhibit a “strong similarity of legal theories,” applicable to the entire class. See
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Baby Neal for & by Kanter, 43 F.3d at 57. Accordingly, Plaintiffs have demonstrated typicality beyond a preponderance of the evidence.
4. Adequacy
Rule 23(a)(4) requires class representatives to “fairly and adequately protect the interests of the class.” Fed R. Civ. P. 23(a)(4). Courts must examine both the qualifications of class counsel and the class representatives. In re Nat’l Football League Players Concussion Injury Litig., 821 F.3d 410, 428 (3d Cir. 2016). In this case, counsel is sufficiently experienced and competent to prosecute the matter on a classwide scale. GTL, however, challenges the adequacy of the class representatives. It argues that the “named Plaintiffs had difficulty describing the nature of the claims being asserted, have rarely communicated with counsel and have done very little to monitor the case.” Defs.’ Opp’n Br. at 30. This argument deserves little. The Court has thoroughly reviewed the Plaintiffs’ deposition transcripts. At times, each struggled in an unfamiliar and relatively high-pressure environment to articulate details about a complex litigation. Nevertheless, the transcripts show that each understands the classwide allegations and that each understands they represent not just themselves but the entire class. See, e.g., King Dep. Tr. 120:8-13, 121:6-13; James Dep. Tr. 19:22-20:2; M. Skladany Dep. Tr. 94:6-13; S. Skladany Tr. 9:12-20.
B. Rule 23(b)(3): Predominance and Superiority
1. Do Common Issues Predominate?
To certify this class under Rule 23(b)(3), the Court must find that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). This analysis tests “whether proposed classes are sufficiently cohesive to warrant adjudication by representation.’” Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045 (2016) (quoting Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997)). Courts must examine elements of the underlying claim to determine whether common questions of law and fact predominate, albeit without ruling on the merits. See Wal-Mart Stores, 564 U.S. at n. 6, 251 (“In this case, proof of commonality necessarily overlaps with respondents' merits contention that Wal–Mart engages in a pattern or practice of discrimination.”); see Neale v. Volvo Cars of N. Am. , LLC, 794 F.3d 353, 370 (3d Cir. 2015).
i. Variations in State Law (Choice of Law)
A federal court sitting in diversity applies the choice-of-law rules of the forum state to determine the controlling law. Maniscalco v. Brother Intern. (USA) Corp, 709 F.3d 202, 206 (3d Cir. 2013). GTL believes that choice-of-law issues undermine
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predominance in this matter. “To the extent out-of-state customers wish to assert a consumer fraud claim for allegedly unconscionable rates and fees,” GTL argues, “they would have to do so under their home state law.” Defs. Br. Opp’n Cert. at 21. The Court disagrees with GTL’s uncited, categorical assertion that the CFA “does not apply to outof-state customers.” Id.
Adhering to the Restatement (Second) of Conflict of Laws, New Jersey courts ask which jurisdiction has the “most significant relationship” to the claim or claims. Id. at 207. Regardless of whether the Court applies § 145 (The General Principle) or § 148 (Fraud and Misrepresentation), New Jersey clearly “has the most significant relationship to the occurrence and the parties.”10 Although the location of harm often dictates the choice of law in tort and consumer fraud cases, see Agostino v. Quest Diagnostics Inc., 256 F.R.D. 437, 461 (D.N.J. 2009), every class member is undeniably tied to New Jersey in a crucial way: each ICS phone call either originated or terminated in a New Jersey correctional facility. Further, regulating correctional facilities is an essential state function that overwhelmingly implicates state and local interests rather than the competing interests of other states. Even the least proximate class members—say, those who never stepped foot in New Jersey but accepted calls from family or friends incarcerated there—directly implicate New Jersey’s interest in regulating its prisons.
ii. CFA § 56:8-2 – Unconscionability (Count One)
Federal courts sitting in diversity apply substantive state law, as interpreted by the state’s highest court. The relevant CFA provision states as follows:
The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice.
N.J.S.A. § 56:8-2 (emphasis added).
10 The Court reaches this conclusion while considering: “(a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.” Restatement (Second) of Conflict of Laws § 6 (1971).
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Plaintiffs allege that GTL engaged in unconscionable business practices by setting grossly excessive rates and fees. Although pricing differed somewhat across facilities, Plaintiffs argue that even the lowest rates and fees were unconscionably high in relation to the actual cost of providing ICS.
GTL argues that “an unlawful practice” necessarily involves deceptive conduct, which turns on each plaintiff’s individual circumstances. The Court agrees that if the CFA requires deception, then individual questions of fact likely predominate. On the other hand, if conduct can be “unconscionable” without deception, and if unconscionability pertains to a single pattern or practice undertaken by GTL, then “questions of law or fact common to class members” likely predominate over questions affecting individual class members. For reasons set forth in today’s summary judgment Opinion, the Court finds that a defendant’s business practice does not need to be deceptive in order to be “unconscionable” under the CFA. Further, Plaintiffs allege that even the lowest pricing schemes were unconscionably expensive. Plaintiffs therefore satisfy the commonality requirement with respect to Count One.
iii. Section § 1983 - Takings Claim (Count Six)
Liability under § 1983 extends only to “persons” acting “under color of state law.” A non-government entity may be a “state actor” under § 1983 under certain circumstances, as when a private actor and the government work or operate together to achieve common interests. Lugar v. Edmondson Oil Co., 457 U.S. 922, 941 (1982). Plaintiffs allege that GTL acted as a state actor throughout the class period. Defendants argue that individual issues predominate as to whether GTL was a “state actor,” since the DOC and the county facilities formed separate agreements with GTL, each with different rates, fees and commissions. The Court, however, finds that these differences were incidental to the core revenue-sharing arrangement that was common to each of the contracts.
The relevant inquiry is whether GTL was a “willful participant in a joint activity with the State or its agents,” id. at 941, and whether the State provided “significant encouragement, either overt or covert,” for the activity.” Blum v. Yaretsky, 457 U.S. 991 (1982). Although the counties may have selected different “options” from GTL’s RFP, the essential business practice—and its causal relationship to the alleged harm sustained by Plaintiffs—is common to all class members. Specifically, the government and GTL formed exclusive contracts under which GTL allegedly shifted the costs of higher site commissions to end users in the form of higher calling rates and ancillary fees. Stephen Yow, GTL’s chief financial officer, testified that regardless of the particular contract, “the correctional institution would determine” whether to impose a setup fee for an Advance Pay account. Yow Dep. Tr. 63:17. GTL employee John Baker testified that the process for setting up an account over the phone did not vary substantially based on the facility or location of the customer. See Baker Dep. Tr. 21:10, 25:20. Defense Expert Dr.
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Epstein opined that costs of implementing GTL’s services vary considerably across facilities, a claim recapitulated in GTL’s brief. Defs.’ Opp’n Cert. at 18. But there is no concrete evidence that such costs varied so substantially as to make some fees unconscionable and others not.11
Defendants further argue that the claims are not ripe because Plaintiffs have not exhausted all administrative remedies. Yet there does not appear to be any state administrative remedy available. See Knick v. Twp. of Scott, 862 F.3d 310, 323 (3d Cir. 2017), cert. granted in part sub nom. Knick v. Twp. of Scott, Pa., 138 S. Ct. 1262, 200 L. Ed. 2d 416 (2018). Plaintiff Mark Skladany attempted unsuccessfully to file written grievances at multiple facilities regarding what he perceived to be excessive phone rates. M. Skladany Dep. Tr. 30:19-33:6. And although the BPU has authority to fix rates, it does not appear authorized to provide the sort of compensatory relief sought by Plaintiffs. See N.J.S.A. 48:2. To the extent a petition for a rulemaking qualifies as administrative relief, the BPU already rejected a Petition that closely tracked the claims in this case. Van Nostrand Decl., Exs. 2, 3. Without an administrative process by which putative class members may apply for “just compensation,” requiring Plaintiffs to exhaust administrative remedies would be futile.
iv. Calculating Damages on a Classwide Basis
Certification under Rule 23 requires that Plaintiffs “establish that damages are susceptible of measurement across the entire class.” Comcast Corp. v. Behrend, 569 U.S. 27 (2013). The question is not whether Plaintiffs have engaged in a complete or accurate calculation, but whether damages are “capable of measurement on a classwide basis,” Comcast, 569 U.S. at 34, and whether a common methodology can be used to calculate individual damages. See Newburg on Class Actions, § 12.4. In this case, the theory underlying both claims is that GTL imposed excessive fees and rates in light of the costs of providing ICS and in comparison to prevailing market rates.
The Court finds that Plaintiffs’ expert, Michael Finneran, has demonstrated that he can calculate the total amount of damages owed to the class, even if he has not yet perfected that calculation. Although Mr. Finneran admits that his initial analysis contained certain miscalculations and inaccuracies, his basic methodology adequately reflects Plaintiffs’ theory of liability. Mr. Finneran’s report assumes a reasonable calling rate of 5-cents-per-minute, based on his extensive experience in the telecommunications industry and the fact that GTL currently charges roughly 5 cents per-minute for all calls. Meanwhile, Defendants allegedly charged between 40 cents and $1.00 per minute during the class period. Mr. Finneran further assumed that a reasonable deposit fee would be 3%, in line with standard credit-card processing fees. By comparison, GTL imposed a
11 Defendants cite a study by the National Sheriff’s Association (“NSA”) finding that costs vary significantly across facilities. Defs.’ Br. at 18. As Plaintiffs observe, however, the study was not specific to New Jersey facilities.
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19% fee to set up a prepaid account and a 19% fee each time a deposit was made. Using GTL’s monthly commission statements, Mr. Finneran calculated what GTL’s revenue would have been between 2007 and 2017 had reasonable rates and fees been imposed, then subtracted that amount from the actual revenue GTL produced. The difference (roughly $150 million) between these two figures represents the total amount of excessive charges and fees during the time period.12 See Finneran Extended Rebuttal, at 2. Relief to each class member—overseen by a claims administrator—would equal the difference between what the individual should have been charged (had GTL applied reasonable rates and fees), and what the individual was in fact charged. The fact that Mr. Finneran’s calculation may require additional revisions is immaterial, and Defendants make too much of the fact that 100-percent accuracy may be implausible; “courts have consistently held that such estimative techniques need not be exact at the class certification stage,” so long as the method for calculating damages matches the theories of liability. 4 Newberg on Class Actions § 12:4 (5th ed.) (citing Comcast v. Behrend, 569 U.S. 27, 35 (2013)).
2. Ascertainability
To satisfy the “ascertainability” standard, Plaintiffs must show that (1) the class is defined by reference to objective criteria; and (2) there is a “reliable and administratively feasible mechanism” to identify class members. See Byrd v. Aaron’s, Inc., 784 F.3d 154, 163 (3d Cir. 2015) as amended (Apr. 28, 2015). Plaintiffs have satisfied both criteria by a preponderance of the evidence.
i. Class Definition
The class is properly defined according to objective criteria, with one caveat. The class is overinclusive in that it runs through to the present, even as the Complaint (and Plaintiffs’ expert) presupposes that current rates and fees are reasonable. See In re GMC Pick–Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 793 n. 14 (3d Cir.1995). Specifically, on July 30, 2015, GTL reduced the flat rate for all calls from DOC facilities to $.04384 per minute. Similarly, GTL dropped rates in county facilities to roughly $0.05 per minute when their respective contracts expired in the summer of 2016. An individual who only used GTL’s services after this time presumably did not suffer damages according to Plaintiffs’ theory. The Court will amend the class period to end in 2016 rather than run through the present. Of course, some degree overinclusiveness will remain, but assiduous claims administration, not denial of certification, is the appropriate course under Rule 23.13
12 Obviously, this is a simplified description. The actual calculations must account for additional variables and changes in rates during the class period. See Finneran Extended Rebuttal, at 3. Further, the calculations should track the actual class period, which was 2006 to 2016. 13 The Court may again amend the class or create subclasses if appropriate. See, e.g., Clarke v. Lane, 267 F.R.D. 180, 194 (E.D. Pa. 2010). (“All class certification orders are conditional and ‘the court retains the authority to re-define or decertify the class until the entry of final judgment
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ii. Administrative feasibility
GTL argues that there is no administratively feasible mechanism to identify class members because GTL did not always collect personal identifying information from inmates and other end-users. Defs.’ Br. Opp. at 28. The Court disagrees. Rule 23 does not require that plaintiffs identify all class members at class certification—instead, a plaintiff need only show that “class members can be identified.” Id. (citing Carrera, 727 F.3d at 308 n. 2) (emphasis added). Moreover, the Third Circuit recently determined that “[a]ffidavits, in combination with records or other reliable and administratively feasible means, can meet the ascertainability standard.” City Select Auto Sales Inc. v. BMW Bank of N. Am., 867 F.3d 434, 441 (3d Cir. 2017) (hereinafter “City Select”).
GTL retains data regarding every transaction and all calls into and out of state and county correctional facilities. Baker Dep. Tr. 84; Phillips Dep. Tr. 51:10. Margaret Phillips, Executive Director of Billing Services for GTL, provided insight into the company’s data retention procedures, which are generally dictated by GTL’s contract with the facility.14 See Phillips Dep. Tr. 14-15. As for GTL’s retrieval capabilities, detailed call records “are kept pretty much indefinitely,” Id. at 16:15, and are “archived off to some sort of backup media and then stored.” Id. at 17:7-8. The process of identifying class members may differ slightly depending on which of the four GTL payment methods are used to fund a particular call. These include (a) Advance Pay; (b) inmate debit accounts (c) calling cards; and (d) collect calls. Id. at 45:3-9. The Court reviews each of these methods and concludes that none poses a significant threat to administrative feasibility.
The most common payment method is GTL’s Advance Pay system, which allows non-inmates to set up prepaid accounts that can be used to dial a specific number (i.e. the friend or family member who establishes the Advance Pay account). At the very least, these class members can be identified by the telephone number associated with each account, which doubles as the account number internally in GTL’s databases. Phillips Tr. 85. In many cases, setting up an Advance Pay account also involves providing GTL with the account holder’s name, address, and other personal identifying information. See id. at 73:5-6; Taylor Decl., Ex. L (Account Summary of Bobby James). Information regarding all payments, fees and transactions associated with an Advance Pay account can be easily retrieved using the telephone number associated with the account. See, e.g., id.. Indeed,
on the merits.’”). 14 Defendants proceeded to the summary judgment stage while this motion as pending. The 2015 deposition of Margaret Phillips is Exhibit R of the Plaintiffs’ Opposition to Summary Judgment and Cross-Motion for Partial Summary Judgment, filed May 4, 2018, ECF No. 165. Although it was not attached to this certification motion, filed February 27, 2018, the deposition now belongs to the record, and there is no reason to ignore reliable evidence that is relevant to deciding this motion.
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GTL must possess this information in order to respond to routine inquiries about “account balances and other account services.” Phillips Dep. Tr. 73:16-21. Class members need only provide an affidavit with proof that the particular phone number associated with the account belonged to that class member during the relevant time period. See id. at Tr. 137:6-9.
Next, DOC inmates may deposit funds from their debit (or commissary) accounts into a GTL account to pay for outgoing calls. At the 20 DOC facilities, each inmate is assigned an IPIN (Individual Identification Number). See ECF No. 158-5 (Excerpt from Inmate Handbook) (expressly identifying GTL as “the providers of the IPIN system.”). The IPIN system allows GTL to limit outgoing calls by a particular inmate to a list of ten numbers requested by the inmate through a DOC Inmate IPIN Assignment Form. The RFP further requires that GTL provide the DOC with means for inquiring and monitoring inmate telephone activity. See Van Nostrand Mar. 27, 2018 Decl., Ex. 11. The same requirements extended to those counties which chose to purchase off of the DOC RFP. See, e.g., Copeland Report at 6. Counties contracting independently with GTL seem to have made similar demands. To the extent GTL struggles to assemble debit call records internally, they may be aided by the facilities themselves.
Third, inmates at many facilities can purchase a prepaid calling card from a thirdparty commissary (or vendor). A specific PIN number is assigned to each card. To dial out from a facility, an inmate simply enters the PIN number, and applicable fees and charges are deducted from the card. Although in this scenario an inmate does not set up a GTL account, GTL nevertheless keeps records of all outgoing calls made using each PIN. The company’s Executive Director of Billing testified that GTL maintains records matching pin card numbers to personal identifying information as well as transaction information. Phillips Dep. Tr. 155-157. On the other hand, Defendants’ opposition brief refers to the testimony of GTL employee John Baker, who claimed (mistakenly, perhaps) that GTL cannot track PINs associated with call records to individual inmates. Baker Dep. Tr. 116:20-22. Ms. Phillips’ testimony carries more weight in this context. Whereas Mr. Baker is “responsible for the customer experience, as it relates to using the channels that are available to make a payment,” id. at Tr. 14:9-11, the testimony of Ms. Phillips (as Executive Director of Billing) reflects more intimate knowledge of GTL’s data management capabilities.
Fourth, inmates may place collect calls15 to friends and family, who may choose to accept or deny the call. In this context, the class member is the person who accepts the
15 Calling collect is referred to in the familiar sense: “a calling arrangement whereby the called party agrees to pay for charges associated with an inmate calling services call originating from an inmate telephone.” Yow Dep. Tr. 146: 22-25. Because of “bad debt” associated with collect calls, such calls have become an increasingly small percentage of the total calls made by inmates in GTL-serviced facilities. Yow Dep. Tr. 149:1-6.
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call (and incurs the charge), not the inmate. It appears that, as is the case with outgoing debit calls, DOC inmates (and presumably inmates in county facilities) must enter a unique IPIN prior to making a collect call. Collect call recipients can establish class membership in several ways. First, the recipient could simply provide call records from his or her own carrier, which would reflect any charges from GTL. See Yow Dep. Tr. 157:22-158:2. Second, the claimant could provide an affidavit attesting to his or her phone number and identifying by name the inmate who made the call. From that point, GTL should be able to match the inmate’s name to his or her IPIN in order to pull transaction records and verify which calls took place.
GTL contends that it lacks pre-2010 data from several facilities previously served by ITI, which GTL acquired that year. See Baker Dep. Tr. 77:2-3. The bare assertion that “GTL does not have records for accounts opened with [DSI-ITI],” Baker Dep. 73:2274:8, 76:21-77:3, is no basis for denying certification. GTL is a large, sophisticated corporation of the sort unlikely to make major acquisitions without integrating its information management systems. The Court will not deny certification simply because Defendants have not yet produced a subset of data useful for identifying certain class members.
Notwithstanding GTL’s protestations, this case is a far cry from Tropicana, in which the Court denied certification based on the plaintiffs’ failure to satisfy the Third Circuit’s ascertainability requirement. 2018 WL 497071, at *9. In Tropicana, the plaintiffs presumed the existence of large quantities of data that was distributed across thousands of third-party retailers, with no common database. Here, there is concrete evidence that most, if not all, class members can be identified with information that is accessible to GTL, and there are relatively straightforward (albeit potentially arduous) mechanisms for cross-checking records.
C. In Re Global Tel*Link Corporation ICS Litigation
Lastly, the Court addresses GTL’s contention that recent developments in other litigation involving GTL weigh strongly in favor of denying certification in the instant action. In a separate case filed in 2013 in the Western District of Arkansas, GTL faces allegations that its interstate rates and fees are “unreasonable” in violation of the Federal Communications Act and amount to common law unjust enrichment. In re Global Tel*Link ICS Litig., No. 5:14-cv-5275-TLB (W.D. Ark.) (“In re GTL”). The Arkansas court granted certification on February 3, 2017, but then decertified the class and granted summary judgment in the defendants’ favor on June 29, 2018. Mojica v. Securus Tech., Inc., 2018 WL 3212037 (W.D. Ark. June 29, 2018). In a letter addressed to this Court on July 10, 2018, GTL argued that the Arkansas decision weighs heavily in favor of denying Plaintiffs’ instant motion for certification. ECF No. 175. The Court sees a red herring.
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As Plaintiffs responded in a letter filed July 12, 2018, ECF No. 178, the Arkansas claims differ in crucial ways from those asserted here. First, common law unjust enrichment, unlike the CFA unconscionability theory proposed here, depends heavily on the “individual circumstances” of each plaintiff to establish liability. More specifically, plaintiffs would be eligible for an exception to the voluntary payment doctrine if they could show “duress, fraud, mistake or failure of consideration.” Mojica, 2018 WL 3212037, at *7 (“For any given phone call, it is impossible to know whether a class member's use of ICS on that occasion was voluntary or the product of, e.g., duress, without examining the particular circumstances surrounding that call, including the contents of the call itself.”). In other words, the unjust enrichment theory would require an “inherently individualized inquiry.” Id. That is not true of the CFA claims here.
Second, the Arkansas plaintiffs asserted that site commissions were “per se unreasonable” under the Federal Communications Act. The district court observed that this position contradicted a recent holding by the Court of Appeals for District of Columbia, which struck down the FCC’s categorical prohibition of site commissions as arbitrary and capricious. See Global Tel*Link v. FCC, 866 F.3d 397 (D.C. Cir. 2017) (“FCC”). Here, Plaintiffs claim that the specific commissions, together with specific ancillary fees, violated a state statute and the Takings Clause of the Fifth Amendment. They do not argue that site commissions are per se unlawful. Nor have they challenged the rulemaking of a federal agency. Neither the decertification of the class in Arkansas nor the Court of Appeals’ decision in FCC undermines the Court’s conclusion here, which is that Plaintiffs have met the requirements of Rule 23 by a preponderance of the evidence.
III. CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for class certification is GRANTED as to Counts One and Six.

August 6, 2018

/s/ William J. Martini WILLIAM J. MARTINI, U.S.D.J.

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 Case 2:13-cv-04989-WJM-MF Document 181 Filed 08/06/18 Page 1 of 16 PageID: 4763

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

BOBBY JAMES, et al., on behalf of themselves and all others similarly situated, ,
Plaintiffs,
v.
GLOBAL TEL*LINK CORP., INMATE TELEPHONE SERVICE, and DSI-ITI LLC,
Defendants.

Docket No.: 13-4989 OPINION

WILLIAM J. MARTINI, U.S.D.J.:
Plaintiffs bring this class action against Defendant Global Tel*Link and its subsidiaries (collectively, “GTL”) in connection with the company’s provision of inmate calling services (“ICS”) to state and county correctional facilities in New Jersey. GTL moves for summary judgment of all four remaining claims pursuant to Federal Rule of Civil Procedure 56. Plaintiffs have cross-moved for partial summary judgment as to whether GTL violated the Takings Clause of the Fifth Amendment. U.S. Const. amend. V. No oral argument was held. Fed R. Civ. P. 78(b). For the following reasons, both competing motions for summary judgment are DENIED. This case will proceed to trial.
I. BACKGROUND
The following facts are described in further detail in the Court’s Opinion granting class certification under Rule 23. ECF No. 179. Since 2006, GTL has been the exclusive provider of ICS to all prisons and jails operated by the State of New Jersey and to each county facility except Passaic. These include 20 New Jersey Department of Corrections (“DOC”) facilities and 21 county facilities.1 See Taylor Decl. in Supp. Cert. (“Taylor
1 New Jersey facilities generate roughly five percent of GTL’s revenue. See Taylor Decl., Ex. E,
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Decl.”), Ex. E. New Jersey law classifies GTL as an “alternative operator service” (“AOS”),2 subject to regulation by the New Jersey Board of Public Utilities (“BPU” or “the Board”). GTL’s interstate calling services are subject to regulation by the Federal Communications Commission (“FCC”).3 Historically, however, federal and state regulators have declined to interpose rate limits on New Jersey correctional facilities.4
Plaintiffs are inmates of New Jersey correctional facilities between 2006 and 2016 who used GTL’s phone services, as well as non-inmates (generally, their friends and family) who used GTL’s services to communicate with inmates during that time.5 Plaintiffs allege that, in the absence of rate regulation, they were charged excessive rates and fees for ICS. They estimate they were overcharged more than $150 million over the class period. See Taylor Decl., Ex. M., Extended Rebuttal Report of Michael F. Finneran, at 2.
In 2005, GTL won an exclusive contract to provide ICS for the DOC and most county correctional facilities. Remaining counties, except for Passaic, formed independent contracts with GTL or one of its subsidiaries. As part of these contracts, GTL paid the facilities “site commissions,” defined as “a straight percentage of all originating, billable revenue.” Taylor Decl., Ex. J, Report of Melissa Copeland at 5. Because commissions produce substantial revenue for the State and counties, ICS contracts are often awarded to the provider who offers the highest commissions to facilities.6 See, e.g., Taylor Decl., Ex. Q, Rebuttal Report of Dr. Roy Epstein, ¶¶ 24-27; Van Nostrand Decl., Ex. 11, Essex County Decision Memorandum (June 6, 2006) (“[T]his is a revenue generating arrangement.”). Stephen Yow, GTL’s CFO, agreed that site commissions were likely the most important feature of ICS service agreements. Yow Dep. Tr. 42:4-5. GTL offered a range of commission options within each contract; the DOC chose to receive a 40% commission for calls from state facilities. Most counties
Report of Michael Finneran at 2. 2 The authorizing statute defines an “alternate operator service provider” as a “non-facilities based telecommunications carrier who is a reseller leasing lines from local exchange carriers and interexchange carriers and who, using these leased facilities along with their own operators, provides operator-assisted services.” N.J.S.A. § 48:17-23. 3 Approximately 90% of calls handled by GTL are intrastate. Taylor Decl., Ex. G (Yow Dep., 94:20-95:6) 4 See, e.g., Global Tel*Link v. FCC, 866 F.3d 397, 401 (D.C. Cir. 2017) (“[P]rior to the Order under review in this case, the Commission had never sought to impose rate caps on intrastate calls.”); Maxwell Slackman, Calling from Prison: Economic Determinants of Inmate Payphone Rates, 10 J.L. Econ. & Pol'y 515, 524 (2014). 5 For a more a precise definition of the Class, see the Court’s Opinion on class certification. ECF No. 179. 6 For instance, Atlantic County’s 2007 RFP stated that “the responsive and responsible bidder offering the Highest Commission Rate to the County,” which could be “not less than 50 percent.” Copeland Report at 7.
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selected options that paid the highest commissions, either 55% and 56%. See, e.g., Epstein Report ¶ 25.
To earn a profit, GTL paired higher commission rates with higher per-minute rates, surcharges, and “ancillary fees” incurred by GTL’s end users. See, e.g., Yow Dep. 170:16-20. Ancillary fees included, for instance, a 19% fee each time a non-inmate set up or deposited funds into a GTL Advance Pay account by telephone.7 Taylor Decl., Ex. H, Baker Dep. Tr. 37:8-38:11. As Mr. Yow explained, “imposing deposit fees is a way to generate enough revenue from the facility to administer the commission they’re expecting and also to cover all the other costs that we have to provide the service in that jail.” Yow Dep. 170:16-20; see, e.g., Dr. Epstein Rebuttal Report (“[D]eposit fee revenue can be used to recoup site commissions paid to facilities.”).
Plaintiffs argue that this “revenue sharing” configuration resulted in calling rates and fees that were far in excess of the actual cost of providing ICS. They claim, for example, that GTL was charging as much as $1.00 per minute for calling time that GTL purchased from telecom providers for as little as $.00018 per minute. Pls.’ Br. Supp. Cert. at 1; Van Nostrand Decl., Ex. I, Decl. Michael Barth ¶ 8. Because GTL’s contracts with the DOC and counties were exclusive, Plaintiffs—unlike normal telephone users—could not choose among different providers, and generally paid amounts far in excess of industry standards. See, e.g., Global Tel*Link, 866 F.3d at 401 (“ICS per-minute rates and ancillary fees together are extraordinarily high.”). In effect, GTL operated a statesanctioned monopoly that generated substantial revenue for the government and GTL by imposing artificially high rates and fees on inmates and their loved ones. See id. (“Winning ICS providers thus operate locational monopolies with a captive consumer base of inmates and the need to pay high site commissions.”)(citation omitted).
In 2013, when this case was filed, there were roughly 23,000 inmates in New Jersey correctional facilities.8 Ms. King’s challenges are typical of many individuals who could not afford to stay connected with their incarcerated loved ones. As the FCC has formally acknowledged, the social and economic impacts of ICS are grave:
Excessive ICS rates also impose an unreasonable burden on some of the most economically disadvantaged in our society. Families of incarcerated individuals often pay significantly more to receive a single 15-minute call from prison than for their basic monthly phone service. We have received
7 An Advance Pay account is simply a prepaid account set up by a non-inmate (usually a family member) providing funds for the inmate to call a particular number or set of numbers. Alternative payment methods, such as sending a check by mail, Western Union, or (at certain facilities) paying at on-site kiosks, were available, but only 10-15 percent of class members used these methods. Baker Dep. Tr. 37:8-38:11. 8www.state.nj.us/corrections/pdf/offender_statistics/2013/Total%20NJDOC%20Inmates%20201 3.pdf.
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tens of thousands of comments from individuals, including many personal stories from inmates, their family members and their friends about the high price of staying in touch using ICS. These rates discourage communication between inmates and their families and larger support networks, which negatively impact the millions of children with an incarcerated parent, contribute to the high rate of recidivism in our nation’s correctional facilities, and increase the costs of our justice system. Familial contact is made all the more difficult because “mothers are incarcerated an average of 160 miles from their last home, so in-person visits are difficult for family members on the outside to manage.”
FCC Report & Order & Notice of Further Rulemaking, FCC 13-113 (Sept. 26, 2013).
Since the FCC issued the above Report and Plaintiffs filed this lawsuit, New Jersey’s legislature has taken measures to eliminate the practices at issue and to reduce the future costs of ICS to end users. In August 2016, the legislature enacted a statute prohibiting site commissions in all state, county, and private correctional facilities in New Jersey; limiting rates to 11 cents per minute for domestic debit, prepaid, and collect calls, and outlawing “any service charge or additional fee exceeding the per minute rate, including, but not limited to, any per call surcharge, account set up fee, bill statement fee, monthly account maintenance charge, or refund fee.” N.J.S.A. § 30:4-8.12. GTL now charges roughly 5 cents per minute for all calls. Taylor Decl., Ex. K.
The Instant Motions for Summary Judgment The parties should be familiar with the procedural history of this case. A detailed account is nonetheless provided in the Court’s Opinion granting class certification. ECF No. 179. The remaining claims include:
• Count One: Violation of CFA, N.J.S.A. § 56:8-2, for “unconscionable business practices”;
• Count Two: Violation of CFA Disclosure Requirements, N.J.S.A. § 56:8176(h);
• Count Four: Unjust Enrichment; and • Count Six: Violation of the Takings Clause, brought under 42 U.S.C. §
1983. GTL moves for summary judgment on all claims. Plaintiffs oppose and crossmove for summary judgment on their Takings claim. This Opinion disposes of both motions.
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II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable jury could find for the non-moving party, and is material if it will affect the outcome of the trial under governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court considers all evidence and inferences drawn therefrom in the light most favorable to the non-moving party. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007). “When confronted with cross-motions for summary judgment, the court must rule on each party’s motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the summary judgment standard.” Marciniak v. Prudential Fin. Ins. Co. of Am., 184 F. App’x 266, 270 (3d Cir. 2006).
III. Defendants’ Motion for Summary Judgment
GTL seeks judgment as to all remaining claims against it. It argues (A) that the CFA claims do not apply to GTL because they interfere with ICS regulation by other state and federal agencies; (B) plaintiffs alleging “unconscionable business practices” under the CFA must show deceptive conduct, which Plaintiffs cannot; (C) the CFA’s disclosure requirements do not apply to GTL; (D) the Takings claims under § 1983 fail because GTL is not a “state actor” and because the claims are not ripe; and (E) the claims for unjust enrichment fail because there is no evidence of unjust conduct, and because the voluntary payment doctrine bars these claims. The Court now addresses each defense.
A. Conflicts between the CFA and State and Federal Statutes
Two related arguments form the bulwark of GTL’s motion for summary judgment: (1) applying the CFA to GTL would encroach upon the Board’s exclusive authority to regulate alternate operator service (“AOS”) providers pursuant to the AOSP Act, and (2) permitting private actions against GTL under the CFA would create “actual” and “potential” conflicts with existing state and federal ICS regulatory schemes. Both arguments fail.
i. The AOSP Act does not Prohibit CFA Claims
The “strong and sweeping legislative remedial purpose apparent in the CFA” creates a presumption that the CFA applies even to conduct regulated by other agencies. Lemelledo v. Beneficial Corp. of Am., 696 A.2d 546, 553 (N.J. 1997). “The CFA explicitly states that the rights, remedies and prohibitions that it creates are cumulative to those created by other sources of law.” Id. (citing N.J.S.A. § 56:8-2.12). The New Jersey Supreme Court has explained that the CFA’s cumulative reach and its creation of a private cause of action “reflect an apparent legislative intent . . . to delegate [] authority
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among various governmental and nongovernmental entities, each exercising different forms of remedial power.” Id.
Nevertheless, GTL claims that the AOSP Act explicitly precludes CFA application by the following language:
Notwithstanding the provisions of [the Telecommunications Act] or any other law to the contrary, the Board of Public Utilities shall regulate the rates and terms and conditions of service of an alternate operator service provider, in a manner consistent with federal law, and use any other means necessary pursuant to law, rule, or regulation to protect the users of the services of an alternate operator service provider.
N.J.S.A § 48:2-21.23.
GTL’s argument falls short for two reasons. First, genuine issues of material fact remain as to whether GTL violated the Takings Clause by imposing excessive fees and rates. See infra at 14. If the jury finds that compliance with BPU’s regulations was nevertheless unconstitutional, then the Board was not acting “in a manner consistent with federal law” when it passed these regulations, and was therefore not acting within its statutory limits. See Lourdes Med. Ctr. of Burlington Cnty v. Board of Review, 963 A.2d 289, 312 (N.J. 2009) (citations omitted) (“If a regulation is plainly at odds with the statute, the court must set it aside . . . the meaning of enabling legislation is pivotal to any analysis of the legitimacy of a rule.”). That would leave a regulatory vacuum, appropriately filled by the “cumulative” enforcement authority of the CFA. See Lemelledo, 696 A.2d at 551.
Second, the Court is skeptical that the legislature intended the AOSP Act to preempt CFA actions against ICS providers. When New Jersey’s Legislature wishes to create exclusive jurisdiction, it usually does so expressly. See, e.g., Doug Gant , Inc. v. Create Bay Casino Corp., 232 F.3d 173 (3d Cir. 2000). In Doug Gant, the Third Circuit dismissed CFA claims brought against certain casinos, because the authorizing statute imbued the Casino Control Commission with “exclusive jurisdiction over all matters delegated to it or within the scope of its powers under the provisions of this act.” 232 F.3d at 188 (citing N.J.S.A. § 5:12-133b.). No such language appears in the AOSP Act. In fact, the legislature amended the CFA in 2009 to impose disclosure requirements on “prepaid calling service providers and prepaid calling card distributors.” N.J.S.A. § 56:8176. Even if GTL were not a “prepaid calling service provider,” other AOSP providers probably are. This indicates that, in amending the CFA, the legislature intended to create “complementary, overlapping, and comprehensive” regulations. Lemelledo, 696 A.2d at 551.
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ii. Purported Conflict with State ICS Regulation
A functioning administrative state cannot subject an entity to conflicting regulations. See id. at 552. Thus, a “direct and unavoidable” conflict with another regulatory scheme renders the CFA inapplicable. Id. at 554. To overcome the presumption of CFA’s applicability, however, the Court “must be convinced that the other source or sources of regulation deal specifically, concretely, and pervasively with the particular activity, implying a legislative intent not to subject parties to multiple regulations that, as applied, will work at cross-purposes.” Id.
GTL argues that the Board has set rate limits for intrastate AOS providers, and that GTL cannot be punished so long as it has complied with those limits. N.J.A.C. § 14:10-6.2. For instance, in 1998, for calls up to five minutes, the Board set a maximum rate of $2.75 for intrastate calls and $4.25 for intrastate calls that require live operator assistance. Id.; see In re Regulation of Operator Serv. Providers, 778 A.2d 546, 562 (N.J. Super. App. Div. 2001). As Plaintiffs argue, however, these rates have not been updated in 20 years. Pls.’ Br. at 11. Telephone calling rates have dropped precipitously over that span. Yow Dep Tr. 130:21-131:2. See 778 A.2d at 580 (acknowledging that the “constantly changing character of the telecommunications industry” necessitated expedited Board review of rate caps); FCC 13-113 ¶ 29 (“[T]he costs of providing ICS are decreasing, in part due to technological advances”). Indeed, evidence in the record suggests that costs to GTL had already decreased significantly by the beginning of the class period in 2006. Finneran Dep. 143:13-144:11. Meanwhile, Plaintiffs allege that GTL has routinely violated BPU’s limits with impunity, avoiding the large monetary penalties that should have been deployed under BPU’s penalties provision. See N.J.A.C. § 14:10-6.3.
Given its failure to update rate limits or enforce its own rules, the Board has failed to “regulate” GTL in a manner that would preclude private causes of action under the CFA’s broad remedial framework. No “direct and unavoidable conflict exists between application of the CFA and application of [the AOSP Act],” because the AOSP Act is not being applied in the ICS context. See Lemelledo, 696 A.2d at 554. Accordingly, the CFA’s “cumulative remedies” are simply doing regulatory work left undone by the Board. Prohibiting these private actions would expose Plaintiffs to the dangers of singleagency regulation foreseen in Lemelledo:
When remedial power is concentrated in one agency, underenforcement may result because of lack of resources, concentration on other agency responsibilities, lack of expertise, agency capture by regulated parties, or a particular ideological bent by agency decisionmakers . . . Underenforcement by an administrative agency may be even more likely where . . . the regulated party is a relatively powerful business entity while the class protected by the regulation tends to consist of low-income persons with scant resources, lack of knowledge about their rights, inexperience in
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the regulated area, and insufficient understanding of the prohibited practice. The primary risk of underenforcement—the victimization of a protected class—can be greatly reduced by allocating enforcement responsibilities among various agencies and among members of the consuming public in the forms of judicial and administrative proceedings and private causes of action.
Lemelledo, 696 A.2d at 553 (citing Arcadia v. Ohio Power Co., 498 U.S. 73, 87– 88 (1990) (Stevens, J., concurring)). See Slackman, supra note 5, at 524 (“Cost regulation is necessary in the inmate payphone industry because payphone services have no close, legal substitutes, inmate demand is inherently inelastic, and the inmates' position as thirdparty beneficiaries incentivizes higher monetary commissions instead of lower end-user prices.”). Defendants respond that these concerns “do not apply here, as there is no evidence of ‘under enforcement’ [sic].” But evidence exists in the form of ossified ratemaking. GTL cites to N.J.A.C. § 14:10-6.1(h) for the proposition that the Board “has done exactly what the Legislature instructed, including exercising authority to ‘investigate’ and ‘evaluate compliance’ . . . and imposing regulatory violations.” Defs.’ Br. 15. Yet there is scant evidence in the record of the Board actually doing any of these things, at least in the ICS context.
Ultimately, BPU’s inactivity led to legislative intervention. In 2014, the AOSP Act was amended to require—as opposed to permit—the Board to regulate calling rates. In 2016, the Governor signed into law a statute banning site commissions; limiting domestic rates to 11 cents per minute; and prohibiting per-call surcharges, account set up fees, bill statement fees, monthly “account maintenance” charges, and refund fees. N.J.S.A. 30:48.12. Clearly, the legislature is not content leaving regulation of ICS to the BPU.
iii. Purported Conflict with Federal ICS Regulation
Finally, GTL argues that the CFA claims potentially interfere with the FCC’s authority to regulate interstate calls, which account for about 10% of GTL’s calls. See Global Tel*Link, 866 F.3d at 412 (finding that the FCC lacked authority to set intrastate rate caps). The FCC has authority to set rate caps on interstate calls to ensure that charges are “just and reasonable.” Id. at 401 (quoting 47 U.S.C. § 201(b)). The FCC made no attempt to set rate caps until its 2013 interim Order, which GTL and other ICS providers petitioned to the D.C. Circuit. Id. at 405 (citing 28 FCC Rcd. 14107, 14114-15 (2013)). The caps set by the FCC’s final Order in 2015 were struck down by the D.C. Circuit. Id. 412. Thus, to date, the FCC has not established valid rate caps for ICS of any kind, and for most of its history has been inclined to leave ICS regulation to the states. It is possible that the FCC will someday preempt state regulation of interstate ICS by imposing rate caps that survive judicial review. Even so, rates deemed “just and reasonable” under the Telecommunications Act, § 201(b), are unlikely to be “unconscionable” under the CFA.9
9 As a matter of last resort, GTL maintains detailed call records that would allow a claims
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For these reasons, the prospect of federal preemption is overstated and offers no basis for summary judgment.
B. “Unconscionable Commercial Practices” under the CFA do not Require Deception (Count One)
Federal courts sitting in diversity apply substantive state law, as interpreted by the state’s highest court. Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). The relevant CFA provision states as follows:
The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice.
N.J.S.A. § 56:8-2 (emphasis added).
GTL argues that “an unlawful practice” always involves deceptive conduct, which turns on each plaintiff’s individual circumstances. Indeed, this CFA provision is ambiguous, and the New Jersey Supreme Court has not directly ruled on whether an “unlawful practice” requires deceptive conduct. Accordingly, this Court must determine how the state’s highest court “would” rule if it were faced with this issue. Comm’r of Internal Revenue v. Bosch, 387 U.S. 456, 465 (1967). For the reasons below, the Court finds that liability for unconscionable business practices under N.J.S.A. § 56:8-2 does not always require that a plaintiff show deception. In light of the Court’s interpretation of § 56:8-2, genuine issues of material fact exist as to whether GTL’s rates and fees were, in totality, unconscionable.
i. Unconscionability Does Not Necessarily Require Deception
New Jersey courts “ascribe to [] statutory words their ordinary meaning and significance . . . and read them in context with related provisions so as to give sense to the legislation as a whole.” DiProspero v. Penn, 874 A.2d 1039, 1048 (N.J. 2005). The Merriam-Webster Dictionary defines “unconscionable” as “(1) not guided or controlled by conscience . . . (2)(a) excessive, exorbitant . . . (b) lying outside the limits of what is reasonable or acceptable.” Webster’s Third New International Dictionary (3d ed. 1993) (emphasis added). Black’s Law Dictionary defines “unconscionable” as:
administrator to weed out the roughly 10% of GTL calls that crossed state lines.
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1. (Of a person) having no conscience; unscrupulous <an unconscionable used-car salesman>. 2. (Of an act or transaction) showing no regard for conscience; affronting the sense of justice, decency, or reasonableness <the contract is void as unconscionable>. Cf. CONSCIONABLE. 3. Much more than is acceptable or reasonable <an unconscionable delay>. 4. Shockingly unjust or unfair <an unconscionable offer>.
Black's Law Dictionary (10th ed. 2014). None of these iterations of “unconscionable” implies deception. Further, the CFA provision is crafted in the disjunctive: it proscribes “unconscionable commercial practices . . . . or knowing concealment . . . of any material fact . . . .” To be sure, the other words listed in § 56:8-2 deal with some type of deceptive conduct. See Soto v. Scaringelli, 917 A.2d 734, 742 (2007) (applying the interpretive canon noscitur a sociis: “that the meaning of an unclear word or phrase should be determined by the words immediately surrounding it.”). Nevertheless, to hold that “unlawful conduct” requires deception would arguably “render the phrase [unconscionability] superfluous.” Wilson v. Brick Twp. Zoning Bd. of Adjustment, 963 A.2d 1208, 1216 (N.J. App. Div. 2009).10 At least several intermediate New Jersey court decisions support the Court’s reading of the CFA, including D'Ercole Sales, Inc. v. Fruehauf Corp., 501 A.2d 990, 996 (N.J. App. Div. 1985):
The statutory elements of N.J.S.A. 56:8-2 are in the disjunctive rather than the conjunctive. As such, a violation may occur if there is a showing of “unconscionable commercial practice.” Hyland v. Aquarian Age 2000, Inc., 148 N.J. Super. 186, 191, 372 A.2d 370 (Ch.Div.1977). There need be no showing of a deceptive or fraudulent act.
501 A.2d at 996. See State v. Hudson Furniture Co., 398 A.2d 900, 902 (N.J. App. Div. 1979) (“[A] violation is complete if an unconscionable practice is proved; a deceptive or fraudulent act need not also be shown.”).
In response, GTL points to Quigley v. Esquire Deposition Services LLC, which found that a cause of action under the CFA could not be made “solely by an allegation that the price of a product was excessive, without consideration of the manner in which it was marketed.” 975 A.2d 1042, 1048 (N.J. Super. Ct. App. Div. 2009). The court reasoned that “in a capitalist society . . . prices are ordinarily established by the marketplace rather than by a government agency . . . .” Id. Quigley could not be further off point. The instant case is not “solely” about excessive rates, but also about “the manner in which” those rates were established—through site commissions and ancillary fees. From the end user’s perspective, there was no marketplace. GTL enjoyed a
10 Punctuation can be an important indication of legislative intent. Here, the absence of a colon or semicolon after “unconscionable business practices” indicates that the words following that phrase are not examples of it, but rather alternative forms of “unlawful conduct.”
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monopoly over individuals held captive “by a government agency.” Id. If anything, Quigley implies when to permit CFA claims absent proof of deceptive conduct. See FCC 13-113 ¶¶ 40-41 (finding that “competition for ICS contracts may actually tend to increase the rate levels in ICS contract bids where site commission size is a factor in evaluating bids,” while the “interest in just and reasonable rates is not necessarily represented in bidding or negotiation.”).
These intermediate appellate decisions align with the New Jersey Supreme Court’s keystone interpretation of the CFA in Kugler v. Romain, 279 A.2d 640 (N.J. 1971). The court explained that “unconscionability is an amorphous concept obviously designed to establish a broad business ethic,” such that courts must “pour content into it on a case-bycase basis.” Id. The legislature sought protection for “large segments of disadvantaged and poorly educated people” from “grievous exploitation by vendors using such devices as high pressure salesmanship, bait advertising, misrepresentation of prices, exorbitant prices and credit charges, and sale of shoddy merchandise.” Id. at 648-49 (emphasis added). The court held that extracting a fee “excessive in relation to [a] defendant’s cost” falls within the ordinary meaning of “unconscionable.” Id. at 651. The court further explained:
The intent of the clause is not to erase the doctrine of freedom of contract, but to make realistic the assumption of the law that the agreement has resulted from real bargaining between parties who had freedom of choice and understanding and ability to negotiate in a meaningful fashion . . .
The standard of conduct contemplated by the unconscionability clause is good faith, honesty in fact and observance of fair dealing. The need for application of the standard is most acute when the professional seller is seeking the trade of those most subject to exploitation—the uneducated, the inexperienced and the people of low incomes. In such a context, a material departure from the standard puts a badge of fraud on the transaction and here the concept of fraud and unconscionability are interchangeable.
We have no doubt that an exorbitant price ostensibly agreed to by a purchaser of the type involved in this case—but in reality unilaterally fixed by the seller and not open to negotiation—constitutes an unconscionable bargain.
Kugler, 279 A.2d at 652 (emphasis added). See also D'Ercole Sales, Inc., 501 A.2d at 998.
Inmates and their family members are often exceptionally vulnerable people. Plaintiffs allege they were compelled to pay excessive rates that, while subject to competition in other settings, were “unilaterally fixed by the seller and not open to
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negotiation.” Kugler, 279 A.2d at 652. Plaintiffs had absolutely no role in negotiating telephone charges and fees, which were instead a function of revenue-sharing agreements between GTL and the correctional facilities. See, e.g., Van Nostrand Decl., Ex. H Essex County Decision Memorandum (“[T]his is a revenue generating arrangement.”). Many Plaintiffs, like Betty King, who at various times had five family members incarcerated in New Jersey, accepted exorbitant rates out of desperation:
[DEFENSE COUNSEL]: Do you believe that GTL tried to trick you in any way when you were using their services?
THE WITNESS: I believe they cheated us out of our money, because you just . . . If you haven’t been there, you don’t know . . . I needed to be able to speak with my children, my sons, my brother, and my husband. I wasn’t worried about the rates. I wasn’t concerned about that. It’s like I’ll cross that bridge when I got there. I knew it was too much, but that was my only way. That was the only way.
King Dep. Tr. 111:17-112:9; see M. Skladany Dep. Tr. 28:23-25 (“[P]eople were always . . . talking about the phone rates, how outrageous and, you know, felt like we were being extorted.”).11
Finally, the Court is mindful that its interpretation of the CFA deviates from Ciser v. Nestle Waters N. Am. Inc., 596 F. App’x 157 (3d Cir. 2015), in which the Third Circuit declared that, “[u]ntil the New Jersey Supreme Court decides otherwise, we read precedent as suggesting that the CFA requires some element of deceptive conduct . . . to be actionable as an unconscionable practice.” Ciser, 596 F. App’x at 162. Ciser, however, is expressly “non-binding precedent.”12 Its facts are entirely unrelatable to the facts now before the Court,13 and the court made no reference to either of the above state decisions that found unconscionability without deception. See supra at 10. Again, the Court is obligated to construe the statute as it believes the state’s highest court would.
ii. Unconscionability Presents a Genuine Question of Material Fact
The Court will not determine whether the rates and fees were so excessive as to be “unconscionable.” That is a question of fact that should be decided by a jury. See, e.g., Leon v. Rite Aid Corp., 774 A.2d 674, 678 (N.J. Super. Ct., App. Div. 2001). Because
11 As the state legislature found, “where a captive market exists for competitive telecommunications services, market conditions are not always able to protect the public interest.” N.J.S.A. § 48:2-21.22. 12 596 F. App’x at 164 (“This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.”). 13 The plaintiff in Ciser was a business owner who misconstrued an arcane contractual provision regarding late-fee penalties in an arms-length purchase of water bottles. 596 F. App’x at 157-58.
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GTL incorrectly assumed that the CFA requires deception, its papers failed to adequately address Plaintiffs’ argument that rates and fees are grossly excessive in relation to GTL’s costs. See Defs.’ Reply Br., n. 5, 13. The inquiry should consider both the commission rates and ancillary fees—the total financial burden imposed on Plaintiffs in relation to the costs of providing those services. The record is rife with contradictory statements about the costs of providing ICS as well as the security and monitoring costs specific to individual state and county facilities serviced by GTL in New Jersey.14 GTL’s motion for summary judgment as to Count One under N.J.S.A. § 56:8-2 is DENIED.
C. CFA Disclosure Requirements, N.J.S.A. § 56:8-176 (Count Two)
Count Two alleges that GTL failed to comply with certain disclosure requirements applicable to “prepaid calling service providers and prepaid calling card distributors” pursuant to a 2009 amendment of the CFA. N.J.S.A. § 56:8-176. GTL moves for summary judgment on the ground that it is not a “prepaid calling service provider” and thus not subject to regulation under N.J.S.A. § 56:8-176. The term “prepaid calling service” means “any prepaid telecommunications service that allows customers to originate calls through a local, long distance or toll-free access number and authorization code, whether manually or electronically dialed.” § 56:8-175. GTL argues that it permitted inmates to call non-inmates directly without using an “access number” or “authorization code.” Defs.’ Br. 24. This does not seem consistent with the record. Although the law does not define “access number” or “authorization code,” inmates were generally required to type a sequence of numbers into the telephone before dialing out. See, e.g., M. Skladany Dep. 75:15-22, 106:7-9; Taylor Decl., Ex. 10, Inmate Handbook at 34.
While the individual Plaintiffs concede that GTL provided access to certain information as to rates, charges, and deposit fees, material questions of fact remain as to whether GTL disclosed all necessary information regarding surcharges under N.J.S.A. § 56:8-176 (h). See Pls. Opp. Summ. J. at 22. The motion for summary judgment as to Count Two is DENIED. Of course, Defendants may be found liable only for those violations taking place after the provision’s 2009 enactment. Liability will depend on the individual circumstances of each Plaintiff; this is not a classwide claim.
D. Takings Claim under Section 1983 (Count Six)
Plaintiffs’ § 1983 claim alleges that GTL violated the Takings Clause of the Fifth Amendment by extracting “excessive and unconscionable charges . . . without just compensation.” Compl. ¶ 134. GTL argues for summary judgment on two distinct grounds. First, GTL alleges that it cannot be liable under § 1983 because it is not a “state
14 Dr. Epstein suggests that the rates were “reasonable” because they resulted from competitive bidding, Epstein Dep. ¶ 30, but the bidding process was anti-competitive from the viewpoint of end users. See Pls.’ Opp. Br. n. 14, at 20.
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actor.” Second, it argues that the claims are not ripe because Plaintiffs have not exhausted all administrative remedies. Both arguments fail.
Liability under § 1983 extends only to “persons” acting “under color of state law.” Leshko v. Servis, 423 F.3d 337, 339 (3d Cir.2005) (citation omitted). Nevertheless, a nongovernment entity may be a “state actor” under § 1983 under certain circumstances, as when a private actor and government work or operate together to achieve common interests. Lugar v. Edmondson Oil Co., 457 U.S. 922, 941 (1982). The relevant inquiries are whether GTL was a “willful participant in a joint activity with the State or its agents,” id. at 941, and whether the State provided “significant encouragement, either overt or covert,” for the activity. Kach v. Hose, 589 F.3d 626, 648 (3d Cir. 2009).
The record clearly shows that GTL was a “willful participant” with the government in setting rates and fees for New Jersey correctional facilities. GTL made a calculated business decision to provide ICS to New Jersey facilities. The State and counties provided “significant encouragement” by awarding contracts based largely on which provider could generate the most revenue through site commissions. GTL responded by offering commission rates in excess of 40% of calling revenue, which the DOC and counties accepted. This was not a normal government contractor relationship. The facilities could not provide ICS without GTL, and GTL could not charge the rates it did without enjoying a state-sponsored monopoly over its end users. This is a case in which “the [s]tate has so far insinuated itself into a position of interdependence with the acting party that it must be recognized as a joint participant in the challenged activity.” Kach, 589 F.3d at 646 (citations omitted).
There is no dispute that higher commissions led to higher calling rates and fees, which form the basis for Plaintiffs’ Takings claim. See Kach, 589 F.3d at 649 (“[T]he focus of our inquiry is not on whether the state exercises control over a putative state actor as a general matter, but whether the state has exercised control over the particular conduct that gave rise to the plaintiff's alleged constitutional deprivation.”).15 And while providing telephone services is not itself a “traditional public function,” operating correctional facilities is.
Defendants further argue that the claims are not ripe because Plaintiffs have not exhausted all administrative remedies. Yet there does not appear to be any state administrative remedy available. See Knick v. Twp. of Scott, 862 F.3d 310, 323 (3d Cir. 2017), cert. granted in part sub nom. Knick v. Twp. of Scott, Pa., 138 S. Ct. 1262 (2018). Plaintiff Mark Skladany attempted unsuccessfully to file written grievances at multiple facilities regarding what he perceived to be excessive phone rates. M. Skladany Dep. 30:19-33:6. And although the BPU has authority to fix rates, it does not appear
15 Of course, contracting with a government agency does not automatically make the contractor a state actor, and most contractors are not state actors.
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authorized to provide the sort of compensatory relief sought by Plaintiffs. See N.J.S.A. § 48:2. To the extent a petition for a rulemaking qualifies as administrative relief, the BPU already rejected a Petition that closely tracked the claims in this case. Van Nostrand Decl., Exs. 2, 3. Without an administrative process by which putative class members may apply for “just compensation,” to require Plaintiffs to exhaust administrative remedies would be futile.
GTL’s motion for summary judgment is DENIED as to Count Six, the Plaintiffs’ Takings claim. The Court finds as a matter of law that GTL was a “state actor” here, and thus a “person” amenable to suit under § 1983.
E. Unjust enrichment (Count Four)16
Unjust enrichment requires showing that a “defendant receive a benefit and that retention of that benefit without payment would be unjust.” VRG Corp. v. GKN Realty Corp., 641 A.2d 519, 526 (N.J. 1994). GTL argues that summary judgment is appropriate because (1) there is no evidence of any unjust conduct, since Plaintiffs “received exactly what they bargained for,” and (2) the voluntary payment doctrine bars the claim. Defs.’ Br. at 25.
First, because there are genuine questions of material fact as to GTL’s costs, it is impossible for the Court to decide whether GTL’s conduct was “unjust.” That question will be answered by a jury. Further, the record demonstrates that no bargaining took place between Plaintiffs and GTL, so it cannot be said that Plaintiffs “received exactly what they bargained for.” Id. at 25. All bargaining occurred between GTL and government.
Second, the “voluntary payment doctrine” is an exception to unjust enrichment that applies “where a party, without mistake of fact, or fraud, duress or extortion, voluntarily pays money on a demand which is not enforcible [sic] against him, [so] he cannot recover it back.” Simonson v. Hertz Corp., No. CIV.A. 1:10-CV-1585, 2011 WL 1205584, at *3 (D.N.J. Mar. 28, 2011) (citing Matter of New Jersey State Bd. Of Dentistry, 423 A.2d 640, 643 (N.J. 1980)). The Court finds that questions remain as to whether Plaintiffs were under duress at the time of payment. Pls.’ Br. n. 22, at 28. Accordingly, GTL’s motion for summary judgment as to unjust enrichment is DENIED.
IV. Plaintiff’s Motion for Partial Summary Judgment
Plaintiffs’ opposition to summary judgment includes a cross-motion for partial summary judgment as to the issue of liability for the § 1983 Takings claims. They ask the Court to hold that GTL’s rates and fees were “far more than a fair approximation of the costs.” Pls.’ Br. at 26. GTL responds that granting summary judgment against it would violate the “one-way intervention rule.” It further argues that genuine questions of
16 This claim is brought only by the individually-named Plaintiffs, not the entire class.
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material fact remain as to whether GTL’s rates and fees were “far more than a fair approximation of the costs.” Defs.’ Reply Br. at 20-21.
The “one-way intervention rule” prevents “members of the claimed class . . . [from] await[ing] developments in the trial or [] final judgment on the merits in order to determine whether participation would be favorable to their interests.” Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 547 (1974). According to GTL, “[r]uling on Plaintiffs’ crossmotion would be prejudicial to GTL because, if the motion is denied, then putative class members would not be bound; but if the cross-motion is granted, putative class members could determine whether they wanted to join the class after GTL’s liability on the taking claim had already had been determined.” Defs.’ Reply Br. at 19.
In this particular case, the Court finds no impropriety in deciding Plaintiffs’ motion for summary judgment in favor of GTL. As the Court has already indicated, issues of material fact remain regarding the costs of providing ICS throughout the class period. Further, GTL’s expert witness, Dr. Epstein, disputes Plaintiffs’ assumption that charging 5 cents per minute would have been “a reasonable approximation of the cost of providing ICS service plus a reasonable profit.” Pls.’ Br. at 26. Under these circumstances, a jury trial is necessary. Plaintiffs’ cross-motion for partial summary judgment is DENIED.
V. CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment and Plaintiffs’ cross-motion for partial summary judgment are DENIED.

August 6, 2018

/s/ William J. Martini WILLIAM J. MARTINI, U.S.D.J.

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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

BOBBY JAMES, et al., on behalf of themselves and all others similarly situated,
Plaintiffs, v. GLOBAL TEL*LINK CORP., et al.,
Defendants.

Docket No.: 13-4989 OPINION

WILLIAM J. MARTINI, U.S.D.J.:

Plaintiffs bring this class action against Defendant Global Tel*Link and its subsidiaries (collectively, “GTL” or “Defendants”) in connection with GTL’s provision of inmate calling services (“ICS”) to correctional facilities in New Jersey. GTL moves for judgment on the pleadings pursuant to FRCP 12(c) or, in the alternative, summary judgment pursuant to FRCP 56. ECF Nos. 212-15. For the reasons set forth below, the motion is GRANTED IN PART and DENIED IN PART.

I.

BACKGROUND

The facts and procedural history of this case were set forth in detail in the Court’s opinions granting class certification, ECF No. 179 (“Class Cert. Opinion”), and denying summary judgment, ECF No. 181 (“SJ Opinion”), familiarity with which is assumed. In the SJ Opinion, the Court concluded, inter alia, (1) New Jersey Consumer Fraud Act (“CFA”) claims do not require deception and (2) GTL qualifies as a “state actor” for purposes of Plaintiffs’ Section 1983 claim. SJ Op. at 9-15. GTL now moves for judgment on the pleadings pursuant to FRCP 12(c), or, in the alternative, summary judgment pursuant to FRCP 56. ECF Nos. 212-15.

II.

LEGAL STANDARD

The parties disagree on what legal standard applies to the issues before the Court. Plaintiffs argue that because GTL previously moved for summary judgment, the motion for reconsideration standard should apply. Opp. at 2-5, ECF No. 220. In reply, GTL argues that the reconsideration standard is inappropriate, as the motion raises issues not presented to the Court or discussed in its prior opinions. Reply at 1-2, ECF No. 229.

In the Court’s view, except as to whether “deception” is required for a CFA claim, GTL’s brief raises new issues and therefore is not a motion for reconsideration. With respect to whether FRCP 12(c) or FRCP 56 applies, GTL supplied its statement of material facts “in case the Court

1

deems it appropriate to convert the motion to a motion for summary judgment.” GTL Br. at 3. Given that GTL was granted leave to file the present motion after representing it “can be decided on the pleadings,” converting the motion into one for summary judgment would not be appropriate. GTL Ltr. (Jan. 15, 2020), ECF No. 205. Accordingly, the motion will be decided under the FRCP 12(c) standard, which, like FRCP (12)(b)(6), dictates that the Court accept all allegations in the complaint as true and reach all reasonable inferences in the non-movants’ favor. E.g., Revell v. Port Auth. of New York, New Jersey, 598 F.3d 128, 134 (3d Cir. 2010).

III.

DISCUSSION

Regardless of the procedural mechanism, GTL’s arguments are the same: (1) Plaintiffs’ takings claim fails as a matter of law because the circumstances of GTL’s provision of phone services do not constitute a “taking” and, in any event, GTL is entitled to immunity, (2) Plaintiffs’ CFA claim fails because, as a government actor, GTL is immune, and (3) both the CFA and Section 1983 claims fail because they rely on the premise that “site commissions” are not legitimate charges. See GTL Br., ECF No. 215.

A. Adequacy of Takings Claims

GTL asserts that the facts alleged do not state a takings claim on which relief can be granted. GTL Br. at 9-20. The Takings Clause of the Fifth Amendment dictates that “private property [shall not] be taken for public use, without just compensation.” U.S. Const., Amend. 5. This is not a typical takings case. Plaintiffs’ theory is that by charging excessive rates and ancillary fees that do not approximate costs, GTL has “taken” Plaintiffs’ property. GTL argues that takings claims require legal compulsion to surrender property, and none occurred here. GTL Br. 11-14. Plaintiffs respond by citing a series of cases challenging fees for using government services or facilities, noting that they did not involve legal compulsion. See Opp. at 31. However, with the exception of United States v. Sperry Corp., 493 U.S. 52 (1989), none of those cases actually involved takings claims.1 Accordingly, they are irrelevant.

In Sperry Corp.—the only case Plaintiffs cite involving a takings claim—the Supreme Court rejected a challenge to a 1.5% fee on judgments awarded through a special tribunal with exclusive jurisdiction over individuals’ claims against Iran. 493 U.S. at 55–56 (1989). The Court did not hold, as Plaintiffs suggest, that government-imposed user fees must be a “fair approximation of the cost of the benefits supplied” in order to not constitute a taking. Opp. at 32. Instead, the Court found that “[t]he deductions authorized by [the enabling act] are not so clearly excessive as to belie their purported character as user fees.” Id. at 60-62 (cleaned up). Thus, the Court implied that if a purported “user fee” was so egregiously disproportionate to costs (i.e., “clearly excessive”), it could constitute a taking. See id. But because the Court found that the

1 Massachusetts v. United States, 435 U.S. 444, 446, 98 S. Ct. 1153, 1156, 55 L. Ed. 2d 403 (1978) (“The constitutional question presented . . . is whether this tax . . . violates the implied immunity of a state government from federal taxation.”); U.S. Shoe Corp. v. United States, 114 F.3d 1564, 1566 (Fed. Cir. 1997), aff’d, 523 U.S. 360 (1998) (affirming decision that harbor maintenance tax violated Export Clause of the Constitution); Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Auth., 906 F.2d 516, 517 (11th Cir. 1990) (appealing judgment on Commerce and Due Process Clause claims).
2

1.5% fee was not so excessive as to “qualify as a ‘taking,’” it had no occasion to analyze whether legal compulsion was also required. See id. Accordingly, Sperry Corp. is also unhelpful to Plaintiffs on this point.2
Finally, in Webb’s Fabulous Pharmacies, Inc. v. Beckwith, which Plaintiffs cite elsewhere in their brief, creditors challenged the government’s practice of (1) charging a percentage fee on court-managed “interpleader fund” accounts while also (2) retaining the interest the account accrued. 449 U.S. 155, 156-58 (1980). The creditors held a property interest in the account but had no control over whether the debtor decided to file the interpleader action or open the fund. Id. at 156-57 (“[A]s permitted by the Florida Bulk Transfers Act . . . Eckerd’s filed a complaint of interpleader in the Circuit Court . . . [which] thereupon ordered that the amount tendered be paid to the court’s clerk.”). Thus, by withholding interest earned on the account without any justification—as the government also charged a healthy fee—the government “took” the interest. Id. at 163 (“the exaction is a forced contribution to general governmental revenues” (emphasis added)). Here, Plaintiffs’ themselves deposited the funds. Thus, this case is quite different.
Without citing a single case upholding a takings claim in the absence of a legally compelled transfer of property, Plaintiffs ask the Court to endorse their atypical interpretation of the Fifth Amendment. But, given the lack of supporting precedent, convincing authority contrary to Plaintiffs’ position, and the (relatively) plain language of the Fifth Amendment, the Court declines to do so. See Arsberry v. Illinois, 244 F.3d 558, 565 (7th Cir. 2001). The Constitution prohibits “private property [from being] taken for public use, without just compensation.” U.S. Const., Amend. 5 (emphasis added). “Taken” implies legal compulsion, not a lack of reasonably priced options, even for crucial service like ICS. Accordingly, Defendants’ motion to dismiss, with respect to Plaintiffs’ takings claims, is GRANTED.3 The Court need not reach GTL’s alternative arguments.
B. New Jersey Consumer Fraud Act Claims
GTL also argues that the CFA claims should be dismissed because (1) GTL is derivatively immune from liability given the Court’s prior conclusion that GTL was acting under color of law, (2) GTL is entitled to qualified immunity, and (3) CFA claims require deceptive conduct.
1. Immunity for Government-Approved Charges
GTL argues that it shares in the Governments’ “absolute immunity” from CFA liability “under the well-recognized principle of derivative immunity.” GTL Br. at 25. In support of
2 The unique circumstances of Sperry Corp. explain why the Court focused on the potential excessiveness of user fees rather than legal compulsion. In that case, the plaintiff was, in a sense, legally compelled to pay the fee because it was precluded from recovering damages (i.e., property) from Iran without using the tribunal and paying the associated fees to the U.S. government. See id. at 55-56 (describing purpose of tribunal as “preclude[ing] litigation by Americans against Iran in American courts”). In fact, the parties reached a settlement without utilizing any of the tribunal’s adjudicatory services, but the Court still found the “user fee” permissible. Id. at 56.
3 The Court retains supplemental jurisdiction over the CFA claims, 28 U.S.C. § 1367, and, in any event, the parties are sufficiently diverse for jurisdiction to be maintained, compl. ¶¶ 6-16; 28 U.S.C. § 1332(d).
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their argument, GTL relies heavily on the New Jersey Supreme Court’s decision in Vanchieri v. N.J. Sports & Exposition Authority, 514 A.2d 1323 (N.J. 1986). GTL Br. at 25. In that decision, the court noted that public contractor’s immunity “is an affirmative defense” and a contractordefendant “should not be immune from suit by the mere fortuity that it contracted with [the government] rather than with a private entity.” Vanchieri, 514 A.2d at 1326. To account for the “legitimate concern that injured plaintiffs not be unduly denied compensation for their injuries,” questions of immunity require “careful scrutiny.” Id. Thus, the New Jersey Supreme Court reversed the trial court’s grant of summary judgment in the contractor’s favor. Id. at 1327.
While GTL may qualify for contractor derivative immunity, this motion is decided under FRCP 12(c), in which the Court applies the FRCP 12(b)(6) standard. See supra Part II. Plaintiffs need not plead around affirmative defenses to survive a 12(b)(6) motion. See Schmidt v. Skolas, 770 F.3d 241, 252 (3d Cir. 2014). Contractor derivative immunity is an affirmative defense. See Vanchieri, 514 A.2d at 1326. Accordingly, Plaintiffs need not plead around it to survive the current motion. See Schmidt, 770 F.3d at 252.
Further, at least one of the two justifications offered in Vancieri for derivative immunity is not fully applicable here. Citing general “notions of fairness,” the New Jersey Supreme Court reasoned that “[a]n independent contractor bound to specifications that are provided by a public entity and over which it has no control is not responsible for defects in those specifications.” Id. at 1323. But here, GTL (1) proposed the site commission structure employed and (2) charged additional fees that were not required by government contracts. See Compl. ¶¶ 1, 38, 137. Thus, at this stage, the Court cannot conclude GTL is entitled to derivative immunity as a matter of law. Defendants can present their affirmative defense at trial and, if appropriate, move for judgment as a matter of law.
2. Qualified Immunity
GTL alternatively argues that it is entitled to qualified immunity. GTL Br. at 30-32. Plaintiffs respond that qualified immunity does not apply to CFA claims and, in any event, it does not apply to GTL. Opp. at 11-13, 28. The Court need not reach the question of whether qualified immunity would protect against CFA claims because, even if it would, GTL is not protected by it. New Jersey’s “qualified immunity doctrine tracks the federal standard.” Brown v. State, 165 A.3d 735, 743 (N.J. 2017). In Richardson v. McKnight, the Supreme Court found that privately employed prison guards could not claim qualified immunity. 521 U.S. 399, 40809 (1997). In reaching a narrow holding,
the Court emphasized that the particular circumstances of that case—“a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, undertaking that task for profit and potentially in competition with other firms”— combined sufficiently to mitigate the concerns underlying recognition of governmental immunity . . . .
Filarsky v. Delia, 566 U.S. 377, 393 (2012) (quoting Richardson, 521 U.S. at 413).
Precisely the same circumstances are present here. As alleged, GTL provides ICS services to New Jersey correctional facilities (i.e., a major, lengthy administrative task with
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limited direct supervision). Compl. ¶ 12. It is easily inferable that as a private entity, GTL does so for a profit and competed with other private firms to be the exclusive ICS provider. Compl. ¶ 14-16, 12-14.4 Cf. Richardson, 521 U.S. at 413 (“undertaking that task for profit and potentially in competition with other firms”). Thus, like in Richardson, Defendants are not entitled to claim qualified immunity. See 521 U.S. at 412. In any event, qualified immunity normally protects individuals so they can “perform their public duties with[out] unwarranted timidity or be deterred from entering [a] line of work.” Filarsky, 566 U.S. at 393 (discussing Richardson). It normally does not protect the government entities employing those individuals. See Barna v. Bd. of Sch. Directors of Panther Valley Sch. Dist., 877 F.3d 136, 142 (3d Cir. 2017). As the creator and organizational executor of an official policy (i.e., the rate and fee structure), GTL stands in the shoes of a government entity, not an individual employee. Therefore, qualified immunity does not apply. See id.5
3. Deceptive Conduct
GTL argues that in light of several recent state and federal court decisions, this Court should reexamine its conclusion that CFA claims do not require deceptive conduct. GTL Br. at 32-33. But the cases GTL cites are easily distinguishable and do not squarely address the issue. Most notably, in a non-precedential opinion, the Third Circuit affirmed the dismissal of a CFA claim stemming from the sale of a “personal seat license.” Gengo v. Jets Stadium Dev. LLC, 776 F. App’x 86, 86 (3d Cir. 2019). The plaintiff paid for the license because, at the time, it was the only way to purchase Jets season tickets in certain sections. Id. The defendants subsequently allowed fans to purchase similar tickets without a license. Id. In dismissing a CFA claim, the court found significant that the plaintiff “agreed that he was acquiring the license solely for the right to purchase tickets” and “[t]hat defendants might now sell adjacent seats to members of the general public does not implicate [plaintiff’s] rights and certainly does not strip him of the benefit for which he bargained.” Gengo, 776 F. App’x at 87. Thus, the plaintiff received exactly what he explicitly and freely contracted for—the right to purchase season tickets in specific seats. See id. As such, without deception, there was no wrongful practice alleged, which the CFA requires. See N.J.S.A. § 56:8-2. Accordingly, the only principle of New Jersey law cited was the oftrepeated phrase that “capacity to mislead is the prime ingredient” of a wrongful practice. Id. at 87-88 (quoting Cox v. Sears Roebuck & Co., 647 A.2d 454, 462 (N.J. 1994); Fenwick v. Kay Am. Jeep, Inc., 371 A.2d 13, 16 (N.J. 1977)). But just as rice flour has replaced wheat as the “prime ingredient” in gluten-free bread, alternative “ingredients” may fill in for deception under certain circumstances.6 Here, unlike in Gengo, Plaintiffs did not receive benefits they freely
4 Paragraph numbers of the Complaint appear out of order. The Court is referring to page 4 generally.
5 Decisions denying qualified immunity are generally immediately appealable, see Zimmerman v. Corbett, 873 F.3d 414, 415 n.3 (3d Cir. 2017), but GTL waived its right to appeal, see GTL Ltr. (Jan. 23, 2020), ECF No. 218 (“GTL has not sought – and has no intention of seeking – an adjournment.”).
6 For example, a pharmacist drastically (but openly) increasing her prices when an ill customer expresses an immediate need for medication may not be deceptive, but likely would be unconscionable. A locksmith doubling her rate if she knows the stove is running inside a home may qualify too. As the Court previously held, “whether the rates and fees were so excessive [here] as to be ‘unconscionable’ . . .
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bargained for. Unfairly capitalizing on Plaintiffs’ lack of choice for critical services may be “unconscionable,” even without deception. A jury will decide.
Trento v. Flagstar Bank similarly focused on deception, but the complaint in that case failed to specify any wrongful conduct by the CFA defendants. See 2018 WL 4110956, at *4 (D.N.J. Aug. 29, 2018). With respect to Zirbser v. Wells Fargo Bank, GTL selectively quotes part of one sentence of an opinion dismissing a CFA claim under FRCP 9(b) for failure to plead with particularity. 2019 WL 3244621, at *3-4 (D.N.J. July 19, 2019). Zirbser did not rule— contrary to GTL’s representation to the Court—that “conduct must be deceptive to violate the CFA.” GTL Br. at 32. Unlike the pending matter, the defendants in Zirbser had no way of knowing the misconduct they were alleged to have committed, they were merely accused of charging “erroneous fees.” Zirbser, 2019 WL 3244621 at *3. Thus, the court dismissed the claim under FRCP 9(b). See id.
Deutsche Bank National Trust Co. v. Merz appears to support Plaintiffs’ position. 2019 WL 4940213 (N.J. Super. Ct. App. Div. Oct. 8, 2019). There, the Appellate Division found that “predatory lending may constitute an unconscionable commercial practice under the CFA.” Id. at *5 (cleaned up). The court defined predatory lending to include use of “fraudulent, deceptive or sharp practices (often the elderly or minorities) to induce borrowers to enter into bad loans.” Id. (emphasis added). In other words, “sharp” practices could be unconscionable even without fraud or deception, especially when applied to potentially vulnerable consumers.
Finally, in BJ America Electric v. BMW North America, the Court found that unconscionable commercial practices required “fraudulent, deceptive or other similar kind of selling or advertising practices.” 2019 WL 2028706, at *7 (N.J. Super. Ct. App. Div. May 8, 2019) (cleaned up and emphasis added). Further, in analyzing whether the allegations constituted an “unconscionable” practice, the Appellate Division did not focus on potential “deception.” Rather, the court broadly analyzed each allegation for general unconscionability. See id. (finding there was “nothing unconscionable” about failing to respond to a letter when no obligation to do so existed, without mentioning potential deception).
For the foregoing reasons, GTL’s motion to dismiss Plaintiffs’ CFA claims is DENIED.
C. Site Commissions as Costs
GTL argues that Plaintiffs’ theory of liability under both the Takings Clause and the CFA fail because they rely on the premise that site commissions are not costs of providing ICS. GTL Br. at 34-35. Plaintiffs’ disagree. They argue that “GTL is free to argue at trial that the site commissions it paid were legitimate expenses, but that is a question for the jury to decide.” Opp. at 21. In any event, Plaintiffs argue, the “calling rates and fees were still unconscionable even if site commissions are considered to be legitimate expenses.” Id. at n.12.
Plaintiffs are mostly correct. As the court previously held, unlike in other cases challenging site commissions as per se unreasonable, “[h]ere, Plaintiffs claim that the specific commissions, together with specific ancillary fees, violated a state statute and the Takings Clause
is a question of fact that should be decided by a jury.” SJ Op. at 12.
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of the Fifth Amendment. They do not argue that site commissions are per se unlawful.” Class Cert. Op. at 16. Whether the specific fees and rates were unconscionable—and relatedly whether site commissions should be considered legitimate costs used to judge the potential excessiveness of those fees and rates—is for the jury to decide. See SJ Op. at *9.

Accordingly, GTL’s motion to dismiss Plaintiffs’ claims due to potentially legitimate cite-commission costs is DENIED.

D. Waiver

The Court need not address whether Defendants waived any of the above-discussed defenses except that (1) they may be raised at trial and (2) GTL was entitled to challenge the sufficiency of Plaintiffs’ claims via FRCP 12(c) motion. See FRCP 12(h)(2).

IV.

CONCLUSION

For the reasons set forth above, GTL’s motion for judgment on the pleadings, or in the alternative, summary judgment, ECF Nos. 212-15, is GRANTED IN PART and DENIED IN PART. An appropriate order follows.

Date: March 2, 2020

/s/ William J. Martini WILLIAM J. MARTINI, U.S.D.J.

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 Case 2:13-cv-04989-WJM-MF Document 269 Filed 10/22/20 Page 1 of 7 PageID: 6909

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

BOBBIE JAMES, et al. on behalf of themselves and all others similarly situated,
Plaintiffs v. GLOBAL TEL*LINK CORP., et al.,
Defendants.

Docket No.: 2:13-cv-04989-WJM-MF OPINION

WILLIAM J. MARTINI, U.S.D.J.:

Plaintiffs bring this class action against Defendant Global Tel*Link and its subsidiaries (collectively, “GTL” or “Defendants”) in connection with GTL’s provision of inmate calling services (“ICS”) to correctional facilities in New Jersey. In the wake of a settlement between Plaintiffs and Defendants, ECF No. 250 (the “Settlement”), several non-class members who are plaintiffs in a separate pending putative class action against GTL (the “Proposed Intervenors”) have moved to intervene or, in the alternative, for leave to appear as amicus curiae, and “conditionally object” to the Settlement (the “Motion”). ECF No. 255. For the reasons set forth below, the Motion is GRANTED for the limited purpose of permitting Proposed Intervenors to participate at the Fairness Hearing as amicus curiae and object to the Settlement.

I.

BACKGROUND

A. Factual Background and Procedural History

The facts and procedural history of this case were set forth in detail in the Court’s opinions granting class certification, ECF No. 179 (“Class Cert. Opinion”), and denying summary judgment, ECF No. 181 (“SJ Opinion”), familiarity with which is assumed.

In the two years since the issuance of the Class Cert. Opinion and SJ Opinion, the parties have taken a number of steps towards resolving this seven-year old case. First, on March 2, 2020, the Court granted GTL’s motion for judgment on the pleadings, dismissing with prejudice the Plaintiffs’ Fifth Amendment “Takings” claim, and leaving Plaintiffs’ claims under the New Jersey Consumer Fraud Act in Count 1 of the Complaint as the only certified class action claim set for trial. See ECF. Nos. 244, 245. Second, the parties engaged in multiple rounds of mediation, and participated in settlement conferences held by the Court, most recently on March 3, 2020.

As a result of these developments and the efforts of the parties in negotiations overseen by experienced mediators and by the Court, the parties reached agreement on the

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Settlement. The Settlement provides, in relevant part, for the payment of up to $25 million in cash and credits to the James Class,1 Settlement §§ 8, 14, as well as a release of GTL by each of the James Class members of any and all claims that were or could have been brought in the Complaint. Settlement §§ 1(u) (defining “Released Claims”), 16 (governing the release of claims).
On July 15, 2020, this Court preliminarily approved the Settlement, ECF No. 251 (“Preliminary Approval Order”), finding that the Settlement “resulted from arm’s-length negotiations between highly experienced counsel and falls within the range of possible approval” and “raises no obvious reasons to doubt its fairness and raises a reasonable basis for presuming that it satisfies the requirements under Fed.R.Civ.P. 23 and due process.” Preliminary Approval Order ¶ 1. The Preliminary Approval Order scheduled a hearing on final approval of the Settlement (the “Fairness Hearing”) for October 15, 2020, and set the deadline for any objections to the Settlement for September 21, 2020. On September 21, 2020, the Proposed Intervenors filed the instant motion to intervene, or in the alternative, to serve as amicus curiae. No objections to the Settlement by members of the James Class were filed or otherwise received by the Court.2
B. The Githieya Action
In 2015, approximately two years after the commencement of this case, the Proposed Intervenors commenced a separate putative class action that is currently pending before the United States District Court for the Northern District of Georgia in a case captioned Githieya v. Global Tel Link Corp., Civil Action No. 1:15-cv-00986-AT (the “Githieya Action”). In the Githieya Action, the Proposed Intervenors, as the named plaintiffs in the putative class (the “Putative Githieya Class”), have asserted claims relating to GTL’s “inactivity policy” whereby GTL allegedly converted outstanding balances on prepaid accounts used to make or receive calls from certain correctional institutions into revenue after certain periods of inactivity on such accounts. See Mot., Ex. 4. Unlike the James Class, which, generally speaking, is limited to persons who either were incarcerated in New Jersey correctional institutions between 2006 and 2016 and who made phone calls using GTL’s services, or established “AdvancePay accounts” with GTL so as to receive phone calls from such incarcerated persons, the Putative Githieya Class encompasses all persons nationwide who funded a prepaid account through GTL’s system and had a positive balance on such account reduced to $0.00 after a period of account inactivity of 180 days or less. Id.
Although the nationwide scope of the Putative Githieya Class could potentially result in overlap between members of the James Class and those of the Putative Githieya Class, the Githieya court has not yet certified any class. As such, neither the existence of
1 For clarity, the certified class in this case will be referred to as the “James Class”. 2 Five members of the James Class sought to be excluded from the Settlement by exercising their right to opt-out. Supplemental Decl. of Steven Giannotti, Ex. A, ECF No. 266-1.
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any such overlap, nor the scope thereof, is known with any reasonable certainty by either the Plaintiffs, GTL, the Proposed Intervenors, the Githieya court, or this Court. Moreover, the Proposed Intervenors themselves, who are the only active plaintiffs in the Githieya Action, are each residents of Georgia who have neither made nor received calls from a New Jersey correctional institution using a prepaid account through GTL’s systems, and are thus not members of the James Class.
GTL and the Proposed Intervenors have apparently known for quite some time that there may be potential overlap between the James Class and the Putative Githieya Class. There appears to be a significant dispute, however, before both this Court in resolving the instant motion and the Githieya court, between the Proposed Intervenors and GTL over (1) the relatedness of the claims raised in the Githieya Action to the claims raised in this case; and (2) the scope of the release of claims in the Settlement and the potential preclusive effect thereof on the claims of Putative Githieya Class members.
In light of this dispute, the Proposed Intervenors have apparently sought, but were denied or otherwise not entitled, to participate in settlement negotiations in this case, discovery relating to the negotiations of the Settlement, and clarification from GTL regarding its understanding of the scope of the Settlement’s release provisions and a stipulation concerning the potential preclusive effect thereof in the Githieya Action. Specifically, the Proposed Intervenors (1) on April 6, 2020, upon learning of a potential settlement in this case, sent a letter to GTL demanding the inclusion of a specific carve out for “inactivity claims” at issue in the Githieya Action and notifying GTL that they would object to the Settlement if such a carve out were not included, Mot., Ex. 2 at 12-14; and (2) on June 8, 2020, eleven days after the terms of the Settlement were made publicly available on this Court’s docket, sent a second letter to GTL, copying Plaintiffs, requesting that GTL enter into a stipulation waiving any arguments that the Settlement would preclude certain claims which may be subsequently litigated in the Githieya Action or, in the alternative, provide additional information related to the Settlement of this case and the potential overlap between members of the James Class and Putative Githieya Class, id. at 2-6. On June 29, 2020, GTL responded to the Proposed Intervenors’ requests, declining either to enter into any stipulation or waive any rights with respect to the potential effects the Settlement may have on the Githieya Action or to provide any further discovery or information with respect thereto. Mot., Ex. 3.
On August 4, 2020, the Proposed Intervenors filed an emergency motion in the Githieya Action for discovery into the identification of potentially overlapping class members between the James Class and the Putative Githieya Class, the value of the “inactivity” claims of any such overlapping class members, and the value of the recoveries under the Settlement for any such overlapping class members. Mot., Ex. 5. Following a telephonic hearing, on August 14, 2020, the Githieya court denied the Proposed Intervenors’ emergency motion and indicated that any concerns over the fairness and reasonableness of the Settlement were more appropriately addressed by this Court in the context of deciding whether to finally approve the Settlement. Mot., Ex. 7 at 4:22-5:4.
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The instant Motion and attached conditional objection raising the Proposed Intervenors’ concerns are now before the Court.

II.

DISCUSSION

Proposed Intervenors argue they should be allowed to participate in these proceedings, including the Fairness Hearing, on three separate grounds: (1) as intervenors as of right pursuant to Federal Rule of Civil Procedure (“FRCP”) 24(a)(2); (2) as permissive intervenors pursuant to FRCP 24(b); or (3) as amicus curiae. Each basis is addressed in turn.

A. Intervention

Proposed Intervenors argue they are entitled to participate in this case as a matter of right, or, in the alternative, the Court should exercise its broad discretion to permit Proposed Intervenors to participate in order to protect their interests and the interests of members of the Putative Githieya Class. Both Plaintiffs and Defendants oppose the Motion, arguing, among other things, that interests of James Class members, including those who may be members of the Putative Githieya Class, are adequately represented by Class Counsel, fairly compensated by the Settlement, and that Proposed Intervenors’ speculative interests in the outcome of this case based on the hypothetical effects such outcome may have on the Githieya Action are insufficient to warrant their intervention in this case on the eve of settlement. The Court agrees with Plaintiffs and Defendants.

1. Intervention as of Right

Under FRCP 24(a)(2), a third party seeking to intervene in an action as of right must establish that (1) the motion to intervene is timely; (2) the third party has a sufficient interest in the litigation; (3) such interest may be affected or impaired, as a practical matter, by the disposition of the action; and (4) such interest is not adequately represented by an existing party in the litigation. In re Cmty. Bank of N. Va., 418 F.3d 277, 314 (3d Cir. 2005). To meet this standard, a proposed intervenor’s “claimed interest in the litigation must be one that ‘is specific [to those seeking to intervene], is capable of definition, and will be directly affected in a substantially concrete fashion by the relief sought.’” Benjamin v. Dep’t of Public Welfare of Pa., 432 F. App’x 94, 97 (3d Cir. 2011) (quoting Kleissler v. U.S. Forest Serv., 157 F.3d 964, 972 (3d Cir. 1998)). “[T]he polestar for evaluating a claim for intervention is always whether the proposed intervenor’s interest is direct or remote.” Kleissler v. U.S. Forest Serv., 157 F.3d 964, 972 (3d Cir. 1998). In other words, a proposed intervenor “must demonstrate that there is a tangible threat to a legally cognizable interest to have the right to intervene.” Harris v. Pernsley, 820 F.2d 592, 601 (3d Cir. 1987).

Proposed Intervenors have failed to establish that they have a sufficient direct interest in this case so as to entitle them to intervene. Proposed Intervenors themselves are not members of the James Class and their own specific claims or interests, whether pursued individually or as part of a future certified class, would in no way be impaired or otherwise effected by the resolution of this case. See Cole v. NIBCO, Inc., No. 3:13-cv-7871-FLWTJB, 2016 WL 1313106, at *6 (D.N.J. Apr. 4, 2016) (denying motion to intervene as of

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Case 2:13-cv-04989-WJM-MF Document 269 Filed 10/22/20 Page 5 of 7 PageID: 6913
right where denial of intervention would not interfere with proposed intervenors ability to pursue their own claims in separate proceeding). Although Proposed Intervenors argue that they have a fiduciary duty to advocate on behalf of members of the Putative Githieya Class, the fact remains that no class in the Githieya Action has been certified, and Proposed Intervenors do not represent the as-yet unidentified absent James Class members in this case who may one day become absent class members in the Githieya Action.
Moreover, even assuming Proposed Intervenors could intervene on behalf of unidentified absent members of the Putative Githieya Class who may also be members of the James Class in order to protect interests that Proposed Intervenors themselves do not have, Proposed Intervenors have failed to demonstrate either that there is a “tangible threat” to the interests of such absent class members or that such interests are not adequately represented by the named Plaintiffs and Class Counsel in this case.
It is clear that the Settlement does not concretely affect or tangibly threaten any direct interest of any Putative Githieya Class member. First, the only Putative Githieya Class members that could even theoretically be affected by the Settlement are also actual members of the James Class. As such, each such James Class member has the right not only to opt out of the class, but to object to the Settlement to protect their own interests. Demarco v. Avalonbay Communities, Inc., No. 15-628 (JLL) (JAD), 2016 WL 5934704, at *5 (D.N.J. Oct. 12, 2016) (holding that rights of proposed intervenors in a class action who were members of the certified class were not impaired by class settlement where they, as all other class members, “ha[d] the option of either participating, objecting or optingout of” the settlement); Little-King v. Hayt Hayt & Landau, No. 11-5621 (MAH), 2013 WL 4874349, at *21 (D.N.J. Sept. 10, 2013) (finding no impairment of a practical interest sufficient to justify intervention as of right where proposed intervenors had the right, as class members, to object to class settlement and preserve their rights without intervention). Moreover, any impairment of any such Putative Githieya Class member’s interests is entirely speculative and depends on a number of critical assumptions that leave the prospect of such impairment far too remote to justify intervention in this case, including: (1) that a nationwide class encompassing some portion of the absent class members in this case is certified in the Githieya Action; (2) that such absent class members would choose to participate in any such class action; and (3) that the court in the Githieya Action determines that such absent class members are barred from recovering on the claims asserted therein.
Finally, Proposed Intervenors’ argument that the interests of absent James Class members who may have “inactivity claims” as part of the Putative Githieya Class are not adequately represented is without merit. There is no question that Class Counsel, after seven years of litigation, have worked diligently to maximize recoveries for all James Class members. Nor does this case present an allocative intra-class conflict in which subsets of the class have divergent or competing interests over a single pool of money. Compare Dewey v. Volkswagen AG, 681 F.3d 170, 187-88 (3d Cir. 2012) (finding representative plaintiffs did not adequately represent entire class where different sub-classes of plaintiffs had incentives under settlement allocation plan to exclude other plaintiffs from priority rights to settlement funds). Simply put, there is no basis to find that, with respect to the
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claims raised, litigated, and settled in this action, and for which the James Class has been certified, the interests of all James Class members have not been adequately represented. In so holding, the Court joins in the conclusions reached by other courts in this district that have expressly rejected arguments similar to that raised by Proposed Intervenors here that the potential scope of the release in the Settlement could unfairly prejudice a subset of James Class members and therefore render their interests adverse to those of the named Plaintiffs. Demarco, 2016 WL 5934704, at *5-6 (“This Court finds that because the existing Plaintiffs are seeking to maximize their economic recovery in the same way as the potential intervenors, there is no adversity of interest.”); Little-King, 2013 WL 4874349, at *21 (finding that proposed intervenors’ interests with respect to claims raised and resolved in the class action were adequately represented by class counsel).
Accordingly, Proposed Intervenors’ motion to intervene as of right is DENIED.
2. Permissive Intervention
Proposed Intervenors also move the Court to exercise its discretion and permit them to intervene in this action under FRCP 24(b). Under FRCP 24(b), the Court may grant permissive leave to intervene if the proposed intervenor (1) acts timely, and (2) shares a claim or defense to that of the case. Fed. R. Civ. P. 24(b). Whether to grant leave to intervene pursuant to FRCP 24(b) is within the sound discretion of the Court. Brody By & Through Sugzdinis v. Spang, 957 F.2d 1108, 1124 (3d Cir. 1992). In exercising its discretion, the Court “must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights.” Fed. R. Civ. P. 24(b)(3). For all the reasons described above, and because allowing the Proposed Intervenors to participate as full parties to this action with all the rights attendant thereto would significantly delay the resolution of this case to the detriment of all existing parties, the Court finds that intervention by the Proposed Intervenors would not be appropriate here. Proposed Intervenors’ motion for leave to intervene is therefore DENIED.
B. Leave to Appear as Amicus Curiae
In the alternative to intervention, Proposed Intervenors seek leave to appear in this case as amicus curiae. This Court has “the inherent authority to appoint amicus curiae to assist in [its] proceedings.” Price v. Corzine, 06–1520, 2006 WL 2252208, at *2 (D.N.J. Aug. 7, 2006). In deciding whether to permit a third party to appear as amicus curiae, the Court considers four factors: (1) whether the amicus curiae has a special interest in the particular case; (2) whether the amicus curiae’s interest is not represented by the existing parties; (3) whether the proffered information is timely and useful; and (4) the amicus curiae is not partial to a particular outcome in the case. Granillo v. FCA US LLC, No. 16153 (FLW) (DEA), 2018 WL 4676057, at *4 (D.N.J. Sept. 28, 2018). “The extent, if any, to which an amicus curiae should be permitted to participate in a pending action is solely within the broad discretion of [the Court].” Professional Drug Co. v. Wyeth, No. 11-5479 (JAP), 2012 WL 4794587, at *1 (D.N.J. Oct. 3, 2012).
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Here, consideration of these factors supports allowing Proposed Intervenors to participate in the Fairness Hearing as amicus curiae. As the named plaintiffs in the Githieya Action, in which class certification has been pending for approximately two years, Proposed Intervenors undoubtedly have a special interest in this case. Indeed, the precise scope of this case has been the subject of numerous pleadings, hearings, and testimony in the Githieya Action, and the district court in that case has expressed her own concerns about the relationship between this case and the Githieya Action.

In addition, the Court has its own concerns about the conduct and positions of the parties, and, in deciding whether to finally approve the Settlement as fair, adequate, and reasonable, must act as a fiduciary for absent class members. To that end, the issues highlighted by Proposed Intervenors go to the heart of that inquiry and were not otherwise raised by either party to this case. Therefore, the Court finds that Proposed Intervenors’ interests are not represented by the parties in the case and that their insight may be useful in evaluating whether to finally approve the Settlement.

Lastly, Proposed Intervenors are not partial to any particular outcome in this case. While they certainly have an interest in protecting the claims of Putative Githiyea Class members, the outcome of this case would not affect any legal rights of the Proposed Intervenors themselves, and “there is no rule that amici must be totally disinterested.” United States v. Akaalbi, 223 F. Supp. 2d 583, 592 (D.N.J. 2002).

Accordingly, Proposed Intervenors will be allowed to appear as amicus curiae for the limited purpose of participating in the Fairness Hearing and objecting to the Settlement.

III.

CONCLUSION

For the reasons stated above, the Motion is GRANTED for the limited purpose of permitting Proposed Intervenors to appear at the Fairness Hearing as amicus curiae and to object to the Settlement.

Date: October 22, 2020

/s/ William J. Martini WILLIAM J. MARTINI, U.S.D.J.

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 Case 2:13-cv-04989-WJM-MF Document 271 Filed 10/22/20 Page 1 of 14 PageID: 6917

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

BOBBIE JAMES, et al. on behalf of themselves and all others similarly situated,
Plaintiffs v. GLOBAL TEL*LINK CORP., et al.,
Defendants.

Docket No.: 2:13-cv-04989-WJM-MF OPINION

WILLIAM J. MARTINI, U.S.D.J.:

Plaintiffs bring this class action against Defendant Global Tel*Link and its subsidiaries (collectively, “GTL” or “Defendants”) in connection with GTL’s provision of inmate calling services (“ICS”) to correctional facilities in New Jersey. Following multiple rounds of mediation and settlement conferences overseen by the Court, the parties have agreed on the terms of a settlement (the “Settlement”). ECF No. 250. The Court has previously granted preliminary approval of the Settlement, permitting the parties to notify Class members of the terms thereof. Now before the Court is Plaintiffs’ motion to finally approve the Settlement (the “Motion”). ECF No. 252. For the reasons stated below, the Motion is GRANTED and the Settlement is finally APPROVED.

I.

BACKGROUND

A. Factual Background and Procedural History

The facts and procedural history of this case were set forth in detail in the Court’s opinions granting class certification, ECF No. 179 (“Class Cert. Opinion”), denying summary judgment, ECF No. 181 (“SJ Opinion”), and granting certain third parties the ability to appear as amicus curiae (“Amicus Opinion”), ECF No. 269, familiarity with which is assumed.

B. The Settlement

On May 28, 2020, the parties entered into, and sought preliminary approval of, the Settlement which would finally resolve all outstanding claims and issues in this case, and result in the voluntary dismissal, with prejudice, of this action.

Consistent with the Court’s ruling in the Class Cert. Opinion, the Settlement defines the Class as:

All persons of the United States, who, between 2006 and 2016, were incarcerated in a New Jersey prison or correctional institution and who used

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the phone system provided by Defendants, or who established an AdvancePay account with Defendants in order to receive telephone calls from a person incarcerated in New Jersey, excluding Essex County prior to June 2010, or persons receiving calls from persons incarcerated in Essex County prior to June 2011.1
Settlement § 1(e) (defining the “Class”). The Class is entitled to receive up to $25 million in cash and credits from GTL in total compensation, allocated among Class Members in accordance with the Plan of Allocation. Id. § 8.
The Plan of Allocation provides for the following distributions for Class Members:
• For Calls made between January 1, 2006 and December 31, 2008, 20% of the total amount spent for calling time above $.05 per minute;
• For Calls made between January 1, 2009 and December 31, 2011, 15% of the total amount spent for calling time above $.05 per minute;
• For Calls made between January 1, 20012 and December 31, 2016, 10% of the total amount spent for calling time above $.05 per minute.
Id. § 14(a). Each of these Settlement Payments will be based on the total spending for each account as shown on GTL’s calling records and shall be subject to a maximum recovery of $5,000 per account. Id. §§ 14(b)-(c). The form of consideration will vary depending on each Class Member’s status as a former or current GTL customer. Former customers will receive cash payments upon the submission of a Claim Form verifying their identity and entitlement to such Settlement Payments; current GTL customers will receive a credit into their AdvancePay accounts equal to the amount of their claim, without the need to submit any proof of claim. Id. §§ 14(d)-(e). In the event the total amount of Allowed Claims exceeds the $25 million settlement amount, each Settlement Payment will be subject to a pro-rata reduction until the total payments equal $25 million. Id. § 14(g).
In exchange for the Settlement Payments, Class Members shall release the “Released Parties,” including GTL, of liability for all “Released Claims.” Id. § 16(a). In turn, the Settlement defines “Released Claims” as:
[A]ny an all claims that were brought or could have been brought in the Action relating to the provision of Defendants’ services for calls originating from prisons, jails or other correctional institutions in New Jersey during the Class Period, including without limitation the rates or fees for or related to such services.
1 The Settlement also excludes the following from the Class: 1) any Class Members who timely and validly elect to be excluded from the Class in accordance with the Preliminary Approval Order; 2) any Class Members who previously excluded themselves from the Class; 3) any GTL customer who set up payment by direct bill; and 4) Defendants and their respective parents, subsidiaries, and affiliates.
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Id. § 1(u). Class Members reserved the right to opt-out or object to the Settlement. Id. §§ 10-12.

On July 15, 2020, this Court preliminarily approved the Settlement, ECF No. 251 (“Preliminary Approval Order”), finding that the Settlement “resulted from arm’s-length negotiations between highly experienced counsel and falls within the range of possible approval” and “raises no obvious reasons to doubt its fairness and raises a reasonable basis for presuming that it satisfies the requirements under Fed.R.Civ.P. 23 and due process.” Preliminary Approval Order ¶ 1. The Preliminary Approval Order scheduled a hearing on final approval of the Settlement (the “Fairness Hearing”) for October 15, 2020, and set the deadline for any objections to the Settlement for September 21, 2020. Only five Class Members sought to be excluded from the Settlement.2 No objections to the Settlement were filed by any Class Members.

On September 21, 2020, plaintiffs in a separate putative class action pending in the United States District Court for the Northern District of Georgia sought to intervene, or, in the alternative, appear as amicus curiae in order to file a “conditional objection” to the Settlement (the “Conditional Objection”). ECF No. 255-1. In the Amicus Opinion, the Court granted the proposed intervenors leave to appear as amicus curiae for the purpose of objecting to the Settlement and appearing at the Fairness Hearing.

The Court now decides the instant Motion to approve the Settlement on a final basis. Having considered each of the motions and papers attached thereto, the terms of the Settlement itself, and the Conditional Objection, and having held a Fairness Hearing to evaluate the terms of the Settlement, the Court finds that the Settlement is fair, reasonable, and adequate.

II.

DISCUSSION

Plaintiffs ask this Court to (1) find that the notice given to Class Members of the Settlement was adequate; (2) approve the Settlement as fair, reasonable, and adequate; and (3) approve the award of attorneys’ fees, expenses, and related costs. The Court will address each request in turn.

A. Adequacy of Notice

Before approving the settlement of a class action, the Court must “direct notice in a reasonable manner to all class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). In order to satisfy this notice requirement, notice of the settlement provided to Class Members must contain the information required by FRCP 23(c)(2) and must be made in a form and manner that satisfies the requirements of due process. Shapiro v. Alliance MMA, Inc., No. 17-2583 (RBK/AMD), 2018 WL 3158812, at *7 (D.N.J. June 28, 2018). FRCP 23(c)(2) provides that notice to Class Members must be the best that is

2Those Class Members are: (1) Jane Bruno; (2) Bruni Nicholas; (3) Marianela Maldonado; (4) Joanna Salgado; and (5) Aakask Dalal.
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“practicable under the circumstances” and must “clearly and concisely state in plain, easily understood language”:
(i) the nature of the action;
(ii) the definition of the class certified;
(iii) the class claims, issues, or defenses;
(iv) that a class member may enter an appearance through an attorney if the member so desires;
(v) that the court will exclude from the class any member who requests exclusion;
(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under Rule 23(c)(3).
Fed. R. Civ. Pro. 23(c)(2). In addition, in the context of a settlement, due process requires that Class Members be notified “(1) of the nature of the pending litigation, (2) of the settlement's general terms, (3) that complete information is available from the court files, and (4) that any class member may appear and be heard at the Fairness Hearing.” In re Prudential Ins. Co. of Am. Sales Practices Litig., 962 F. Supp. 450, 527 (D.N.J. 1997).
Here, the notice provided to Class Members satisfies the requirements of FRCP 23 and due process. The notice described, in detail, (1) the nature of the Action and the legal and factual bases for the claims pursued therein, the definition of the certified class, (2) the key terms of the Settlement, including the settlement amount, the process for each Class Member to receive Settlement Payments, and the release of claims against GTL, (3) the binding nature of the Settlement on each Class Member, (4) the rights of each Class Member to retain separate legal counsel, object to the Settlement, opt-out of the Class, or appear at the Fairness Hearing, as well as the deadlines by which to do so, and (5) where to find additional information about the Action and the proposed Settlement. See Giannotti Decl., Ex. A., ECF No. 252-8. Accordingly, the Court finds that the notice provided to Class Members “contain[ed] sufficient information to enable class members to make informed decisions on whether they should take steps to protect their rights.” In re Baby Prods. Antitrust Litig., 708 F.3d 163, 180 (3d Cir. 2013).
Likewise, the Court finds that the manner in which Class Members were notified comports with the requirements of FRCP 23 and due process. Email notice was successfully delivered to 473,960 valid email addresses, and postal notice was made to over 39,722 mailing addresses on the Settlement Class List. Giannotti Decl., ¶¶ 4-9. Notice of the Settlement was posted on the website that was established and maintained after the Class was certified, which has had 13,384 unique visitors resulting in approximately 3,835-page views. Id. ¶ 13. Moreover, notice of the Settlement was printed in the Prison Legal Times on both August 1,
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2020 and September 1, 2020, as well as in both the Newark Star Ledger and South Jersey Times on August 11, 2020 and August 18, 2020. Id. ¶ 10. Finally, notice of the Settlement, and responses to frequently asked questions with respect thereto, was available via a toll-free hotline that allowed Class Members the opportunity to arrange a callback from a live operator. Id. ¶ 11-12.
Based on the foregoing, the Court concludes that the manner in which notice was provided to Class Members was the best practicable under the circumstances and satisfies the requirements of FRCP 23 and due process.
B. Approval of the Settlement
FRCP 23(e) requires court approval of any proposed settlement of a class action. Fed. R. Civ. P. 23(e). In determining whether to approve the Settlement, the Court notes two important, yet competing, points. First, the law encourages and favors the settlement of civil actions in federal court, particularly so in complex class actions. In re Gen. Motors Corp. Pick–Up Truck Fuel Tank Prods. Liab. Litig., (“General Motors” ), 55 F.3d 768, 784 (3d Cir.1995); see also In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 535 (3d Cir. 2004) (“Warfarin”) (“[T]here is an overriding public interest in settling class action litigation, and it should therefore be encouraged.”). However, notwithstanding the general presumption in favor of settlement, in the class action context, the Court “acts as a fiduciary who must serve as a guardian of the rights of absent class members.” General Motors, 55 F.3d at 785 (citations and quotations omitted). In balancing these interests and objectives, the key inquiry is whether the proposed settlement is “fair, reasonable, and adequate.” In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, (“Prudential I”), 148 F.3d 283, 316 (3d Cir.1998). Whether to approve a settlement as fair, reasonable, and adequate is committed to the sound discretion of the Court. Id. at 299.
The Third Circuit has identified nine factors for the Court to consider in determining whether the Settlement is fair, reasonable, and adequate: (1) the complexity, expense and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings and the amount of discovery completed; (4) the risks of establishing liability; (5) the risks of establishing damages; (6) the risks of maintaining the class action through the trial; (7) the ability of the defendants to withstand a greater judgment; (8) the range of reasonableness of the settlement fund in light of the best possible recovery; and (9) the range of reasonableness of the settlement fund to a possible recovery in light of all the attendant risks of litigation. Girsh v. Jepson, 531 F.2d 153, 157 (3d Cir.1975). Beyond these nine factors, the Third Circuit has also identified additional factors the Court may consider when appropriate and relevant, including: the maturity of the underlying substantive issues; the existence and probable outcome of claims by other classes and subclasses; the comparison between the results achieved by the settlement for individual class or subclass members and the results achieved-or likely to be achieved-for other claimants; whether class or subclass members are accorded the right to opt out of the settlement; whether any provisions for attorneys' fees are reasonable; and whether the procedure for processing individual claims under the settlement is fair and reasonable.
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Prudential I, 148 F.3d at 323.3 “These factors are a guide and the absence of one or more does not automatically render the settlement unfair.” In re Am. Family Enters., 256 B.R. 377, 418 (D.N.J. 2000) (quotations omitted). Instead, the Court “must look at all the circumstances of the case and determine whether the settlement is within the range of reasonableness under Girsh.” In re Valeant Pharms. Int’l Inc. Sec. Litig., No. 3:15-CV07658-MAS-LHG, 2020 WL 3166456, at *7 (D.N.J. June 15, 2020) (“Valeant”). The Court addresses each Girsh factor, and, where appropriate, Prudential factor, in turn.
1. The complexity, expense and likely duration of the litigation
Analysis of the first Girsh factor “captures the probable costs, in both time and money, of continued litigation.” In re Nat’l Football League Players Concussion Injury Litig., 821 F.3d 410, 437 (3d Cir. 2016) (“NFL Players Litig.”). Here, the costs, complexity and likely duration of this case strongly favor settlement. This case is already seven years old and has gone through two trips to the Third Circuit. Although the case was on the eve of trial when the Settlement was announced, the time and expense of a complex class action trial is substantial, and would very likely lead to post-trial motions and subsequent appeals that could extend this case for several more years. Indeed, at the time the Settlement was announced, a number of pre-trial motions, including a motion to decertify the Class, were pending and would have required resolution by this Court before the trial could take place. Finally, the Court cannot ignore the exigent circumstances posed by the COVID-19 pandemic, which has considerably slowed the progress of litigation and has forced courts in this district to reschedule trials or organize virtual hearings where practicable until it is safe to resume such activities in person.
2. The reaction of the class to the settlement
“The second Girsh factor ‘attempts to gauge whether members of the class support the settlement.’” Warfarin, 391 F.3d at 536 (quoting Prudential I, 148 F.3d at 318). Here, Plaintiffs state that the notice records indicate that, for the relevant ten-year class period, there are over 500,000 Class Members. Mot. at 8; Giannotti Decl. ¶¶ 4-9. Of those Class Members, none filed any objection to the Settlement, and only five sought to be excluded therefrom by opting-out. The absence of any objections by Class Members, and the exceedingly small number of opt-outs relative to the apparent size of the Class, strongly weighs in favor of approval of the Settlement. See, e.g., NFL Players Litig.¸821 F.3d at 438; Little-King v. Hayt Hayt & Landau, No. 11-5621 (MAH), 2013 WL 4874349, at *21 (D.N.J. Sept. 10, 2013) (collecting cases).
3 Rule 23(e)(2) was amended in 2018 to include a list of factors for courts to consider in evaluating a proposed settlement of a class action. The Third Circuit has, however, continued to apply the Girsh and Prudential factors. See In re Google Inc. Cookie Placement Consumer Priv. Litig., 934 F.3d 316, 329 (3d Cir. 2019). Accordingly, this Court likewise focuses its analysis on the appropriate Girsh and Prudential factors.
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3. The stage of the proceedings and the amount of discovery completed
The third Girsh factor “captures the degree of case development that class counsel have accomplished prior to the settlement. Through this lens, courts can determine whether class counsel had an adequate appreciation of the merits of this case before negotiating.” In re Cendant Corp. Litig., 264 F.3d 201, 235 (3d Cir. 2001) (quotations omitted). Here, this factor undoubtedly favors approval of the Settlement. As noted above, this case has been pending and actively litigated both before this Court and in the Third Circuit for seven years. The parties have litigated motions to dismiss, to certify (and decertify) the class, summary judgment, judgment on the pleadings, and to compel arbitration. In addition, the parties have completed discovery and have had ample opportunity to develop thoughtful and thorough evaluations of the relative strengths and weaknesses of their claims or defenses. Finally, prior to reaching agreement on the terms of the Settlement, the parties have engaged in multiple rounds of mediation with a Court-appointed mediator, and in multiple settlement conferences lead by the Court.
4. The risks of establishing liability and damages
Together, the fourth and fifth Girsh factors “survey the potential risks and rewards of proceeding to litigation in order to weigh the likelihood of success against the benefit of an immediate settlement.” Warfarin, 391 F.3d at 537. In other words, the Court must consider “what the potential rewards (or downside) of litigation might have been had class counsel elected to litigate the claims rather than settle them.” General Motors, 55 F.3d at 814.
Here, as the Court noted in the Class Cert. Opinion, Plaintiffs’ expert had preliminarily concluded that the total value of Plaintiffs’ claims was “roughly $150 million.” Class Cert. Op. at 12. However, by the time the Settlement was reached, only one of the two certified claims remained: Plaintiffs’ CFA claim alleging GTL engaged in unconscionable business practices. This claim was subject to certain defenses, including GTL’s argument that it was entitled to share in the government’s absolute immunity to a CFA claim through the application of “derivative immunity.” In addition, as GTL points out, Plaintiffs’ expert was subject to a pending Daubert motion. Finally, as noted above, GTL had already moved to decertify the Class, and there was no guarantee that Plaintiffs would have been able to continue to prosecute this case as a Class Action.
Beyond these technical points, however, is an obvious one: there is no guarantee that Plaintiffs would have been successful in convincing a jury to hold GTL liable. Plaintiffs’ lone remaining claim and legal theory under the CFA for unconscionable business practices would have required Plaintiffs to establish that the fees and other charges levied by GTL were unconscionable within the meaning of the CFA. While Plaintiffs certainly may have been successful in establishing such liability at trial, the Court cannot conclude that such a result was likely with any reasonable certainty. Accordingly, this factor also weighs in favor of approving the Settlement.
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5. The risks of maintaining the class action through the trial
The sixth Girsh factor “measures the likelihood of obtaining and keeping a class certification if the action were to proceed to trial.” Warfarin, 391 F.3d at 537 (citations omitted). Although this factor is ordinarily entitled to minimal weight, the Court finds that the pending motion to decertify or otherwise narrow the Class tilts this factor, however slightly, towards supporting the Settlement.
6. The ability of the defendants to withstand a greater judgment
Neither party has suggested that the Settlement Amount was in any way related to GTL’s professed inability to pay. Thus, this factor is not relevant to the Court’s analysis.
7. The range of reasonableness of the settlement fund in light of the best possible recovery and all attendant risks of litigation
The eighth and ninth Girsh factors analyze “whether the settlement represents a good value for a weak case or a poor value for a strong case.” Warfarin, 391 F.3d at 538. “The factors test two sides of the same coin: reasonableness in light of the best possible recovery and reasonableness in light of the risks the parties would face if the case went to trial.” Id.
Here, the Settlement provides immediate relief to Class Members of up to $25 million. For the most vulnerable members of the Class, those currently incarcerated and paying for GTL’s services, the Settlement would provide immediate relief in the form of a credit on such Class Members’ AdvancePay accounts that could be used to pay for continued communication with such Class Members’ friends and family without the need to submit a proof of claim form. For former GTL customers, upon the submission of a proof of claim form and verification of the information contained therein, such Class Members will receive direct cash payments. These immediate, or near immediate, benefits are substantial and, particularly for current GTL customers, are arguably more valuable than theoretically higher cash payouts that might not arrive until after a final judgment is rendered and appellate options are exhausted.
In addition, as noted above, if (1) the Court denied GTL’s pending decertification motion; (2) the Plaintiffs’ expert survived GTL’s Daubert challenge, (3) Plaintiffs’ successfully convinced a jury that GTL’s fees and charges were unconscionable business practices under the CFA, and (4) Defendants failed to establish that they were entitled to immunity, Plaintiffs may have been entitled to very substantial recovery – perhaps up to $150 million. However, the pending motions to decertify the class and to challenge the reliability of Plaintiffs’ damages expert, as well as the availability of a potential immunity defense created a not insignificant risk that Plaintiffs could have recovered nothing at all, or that some portion of the Class may have been forced to arbitrate their claims rather than participate in the class action.
In light of these risks, and the certainty of the benefits provided by the Settlement, the Court concludes that these factors weigh in favor of approving the Settlement.
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8. The Prudential Factors
In addition to the Girsh factors, the Court also finds that consideration of the relevant Prudential factors also weighs in favor of approving the Settlement. First, Class Counsel has had seven years to evaluate the substance of the claims asserted in the Complaint and certified by this Court and was able to make an informed decision about the appropriate settlement value of such claims. Moreover, while the Court is unaware of similar “unconscionability” claims under the CFA as it relates to telephone fees and charges, the Court cannot say that this case raises such a novel or complex legal issue that the Court cannot reasonably evaluate the fairness of the proposed Settlement. The Settlement provided ample opportunity for Class Members to object thereto or opt-out from the Class, along with clear instructions for how to do so. The procedures for processing individual claims are entirely fair and reasonable, requiring nothing from current GTL customers and only the submission and verification of a proof of claim form for former GTL customers. Finally, as explained in more detail below, the Court finds that the attorneys’ fees requested are also fair and reasonable. See infra Section II.C.
9. Amicus’ Objection
Amicus “conditionally object” to the Settlement on a number of grounds. The Court has carefully reviewed Amicus’ objection and the pleadings related thereto and concludes that the objection is without merit.
At the outset, the Court notes that the issues raised in the Conditional Objection are, as the name suggests, conditional. As Amicus freely admit, the arguments raised in the Conditional Objection only matter if the Court determines that the release provisions in the Settlement encompass certain “inactivity” claims that are at the heart of a putative nationwide class action pending in the United States District Court for the Northern District of Georgia (the “Githieya Action”). In essence, Amicus asks the Court to rule on the preclusive effect of the release in the Settlement on a specific set of claims that may come before the court in the Githieya Action. This, however, the Court is not in a position to do.
This threshold determination would require the Court to engage in a far-reaching analysis of hypothetical issues that are not properly before it. At present, although a motion for class certification is pending in the Githieya Action, no class has been certified and no claims have been certified for class adjudication. It is thus entirely speculative whether the scope of the release in the Settlement would foreclose any class claims asserted therein. Moreover, Amicus and both GTL and the Plaintiffs appear to agree that any effect the release in this case has on the claims that may eventually be litigated in the Githieya Action is a question for the Githieya court to ultimately decide, and for good reason: it would be wholly inappropriate for this Court to prejudge the merits of claims or defenses pending in another action before another court, and the Court refuses to do so here.
Instead, the Court is tasked with ensuring that the release, as with all of the Settlement’s key terms, is fair, reasonable, and adequate in light of the nature of the case and the issues that are properly before it. “[A] judgment pursuant to a class settlement can
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bar later claims based on the allegations underlying the claims in the settled class action.” In re Prudential Ins. Co. of Am. Sales Practice Litig. (Prudential II), 261 F.3d 355, 366 (3d Cir. 2001). Courts in this district have long recognized that class action settlements may release “all claims that arise out of the same course of conduct alleged in the Complaint.” Varacallo v. Mass. Mut. Life. Ins. Co., 226 F.R.D. 207, 244 (D.N.J. 2005) (collecting cases). The Third Circuit has repeatedly noted that this rule “serves the important policy interest of judicial economy by permitting parties to enter into comprehensive settlements that prevent relitigation of settled questions at the core of a class action.” Prudential II, 261 F.3d at 366; Halley v. Honeywell Int’l, Inc., 861 F.3d 481, 494 (3d Cir. 2017).
The release at issue here clearly satisfies this standard and is appropriate in light of the circumstances of this case. Section 16 of the Settlement provides, in relevant part, “[i]n consideration of this Agreement and the benefits extended to the Class, Class Plaintiffs, on behalf of themselves and the Class Members, and each Class Member . . . fully release and forever discharge the Released Parties from the Released Claims.” Settlement § 16(a). In turn, as noted above, the Settlement defines the “Released Claims” as:
[A]ny an all claims that were brought or could have been brought in the Action relating to the provision of Defendants’ services for calls originating from prisons, jails or other correctional institutions in New Jersey during the Class Period, including without limitation the rates or fees for or related to such services.
Id. § 1(u). The notice of the Settlement provided to Class Members accurately described in detail the nature of the release and the rights of Class Members to opt-out of the Settlement to avoid being bound thereby. Giannotti Decl., Ex. A.
Ultimately, Class Counsel made an informed decision as to which claims to pursue in this litigation, and only one of those claims was certified by the Court for class adjudication and remains pending. Class Counsel is experienced in similar class action litigation and has lived with and worked extensively on this specific case for seven years. In short, the Court will not second guess Class Counsel’s evaluation of the claims against GTL or their litigation strategies in determining which claims to pursue or settle, and because Class Members were adequately notified of the consequences of the Settlement and the release, the Court concludes that the release is fair, reasonable, and adequate.
Notwithstanding the above determination, however, the Court wishes to be clear on what it is not holding. The Court does not hold that the release does or does not apply to the “inactivity” claims at issue in the Githieya Action. Therefore, the Court has not ruled on whether such “inactivity claims” concern the provision of GTL’s services, relate to the conduct alleged in the Complaint, or were or could have been brought in this Action. These questions, as the parties themselves admit, are for the Githieya court to answer at the appropriate time based on that court’s understanding of the precise nature of the claims asserted therein.
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C. Attorneys’ Fees
Class Counsel requests an award of attorneys’ fees and expenses in the amount of $8,332,500 to be paid by GTL, in addition to, and separate from, the up to $25 million payable to Class Members through the Settlement. Pursuant to Rule 23(h), the Court “may award reasonable attorney’s fees and nontaxable costs that are authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). Although the decision to award attorneys’ fees and expenses is within the Court’s discretion, the Court must carefully review the negotiated award to ensure that it is fair, reasonable, and adequate. Little-King, 2013 WL 4874349, at *18; see also In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 300 (3d Cir. 2005). In evaluating an award of attorneys’ fees, courts typically apply one of two methodologies: (1) the lodestar method in which the number of hours worked by Class Counsel is multiplied by a reasonable hourly billing rate for such services; or (2) the percentage-ofrecovery method in which Class Counsel is awarded a certain percentage of the Settlement Amount. In re AT&T Corp., Sec. Litig., 455 F.3d 160, 164 (3d Cir. 2006). Where, as here, the Settlement provides for the payment of attorneys’ fees from the same source as the pool of Settlement funds available to Class Members – here, GTL – the arrangement “is, for practical purposes, a constructive common fund” that is best analyzed using the percentageof-recovery methodology. See Dewy v. Volkswagen AG, 558 F. App’x 191, 197 (3d Cir. 2014); see also General Motors, 55 F.3d at 820-21.
1. Percentage of Recovery Analysis
In determining whether a fee award is reasonable under the percentage-of-recovery analysis, the Third Circuit has identified a number of factors for the Court to consider: (1) the size of the fund created and the number of persons benefitted; (2) the presence or absence of substantial objections by members of the class to the settlement terms and/or fees requested by counsel; (3) the skill and efficiency of the attorneys involved; (4) the complexity and duration of the litigation; (5) the risk of nonpayment; (6) the amount of time devoted to the case by plaintiffs’ counsel; and (7) the awards in similar cases. Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 n.1 (3d Cir. 2000). In addition to these seven factors, the Third Circuit has identified three additional factors for the Court to consider: (8) the value of benefits attributable to efforts of class counsel relative to the efforts of other groups, such as government agencies conducting investigations; (9) the percentage fee that would have been negotiated had the case been subject to a private contingent fee arrangement at the time counsel was retained; and (10) any innovative terms of settlement. In re Diet Drugs (Phentermine/Flenfuramine/Dexflenfuramine) Prods. Liab. Litig., 582 F.3d 524, 541 (3d Cir. 2009).
Several of these factors overlap considerably with those considered by the Court in approving the Settlement itself as fair, reasonable, and adequate. For example, the Court has already determined that the duration and complexity of this case (factor 4) were both substantial: the case, which concerned the rights of thousands of Class Members and raised complex questions under state and federal law, has been pending for seven years, gone through two separate appeals to the Third Circuit, and faced the likely prospect of a third
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appeal upon the conclusion of the upcoming trial. See Lincoln Adventures LLC v. Those Certain Underwriters at Lloyd’s, London Members, No. 08-235, 2019 WL 4877563, at *6 (D.N.J. Oct. 3, 2019). Similarly, the Court has already noted the lack of any objections to the Settlement (factor 2), notice of which included specific information about the fees requested by Class Counsel. Id.; see also Valeant, 2020 WL 3166456, at *12. Finally, the Court has already extensively analyzed the risk of nonpayment (factor 5) by noting the various risks, including the risk of an unsuccessful trial or appeal, that would render Plaintiffs, and – because Class Counsel has represented Plaintiffs on a wholly contingent basis – therefore Class Counsel, unable to recover anything at all. In re Merck & Co., Inc. Vytorin ERISA Litig., No. 08-CV-285 (DMC), 2010 WL 547613, at *11 (D.N.J. Feb. 9, 2010) (“Merck”). Accordingly, as with the Settlement, each of these factors weighs strongly in favor of approving the award of attorneys’ fees and expenses.
The remaining factors also support the award of attorneys’ fees and expenses. With respect to the first factor, the $25 million Settlement Amount is a substantial recovery for Class Members, and provides both immediate relief to the estimated 55,000 currently incarcerated GTL customers as well as direct cash payments to potentially hundreds of thousands of former GTL customers who submit a valid claim. This factor therefore supports the requested award.
Likewise, the third factor unquestionably supports approving the requested fee award. This factor measures the “quality of the result achieved, the difficulties faced, the speed and efficiency of the recovery, the standing, experience and expertise of counsel, the skill and professionalism with which counsel prosecuted the case and the performance and quality of opposing counsel.” Valeant, 2020 WL 3166456, at *12 (quotations omitted). Here, as noted, the $25 million recovery for Class Members is substantial and immediate, particularly in light of the length of this case, the complex issues involved, and the zealous advocacy on both sides. Moreover, both Class Counsel and counsel for the Defendants are highly experienced, reputable firms who are no strangers to complex class actions and civil litigation.
The sixth factor weighs in favor of approving the requested fee award. Over the course of seven years of complex litigation, Class Counsel devoted a combined 7,627.9 hours to this case. Cecchi Decl. ¶¶ 9, 13; Plaisted Decl. ¶ 8. Class Counsel devoted substantial time litigating multiple motions to dismiss, motions for summary judgment, a motion to compel arbitration, a motion for class certification, appeals to the Third Circuit, multiple rounds of mediation, extensive discovery, and substantial pre-trial preparation. Cecchi Decl. ¶ 2; Plaisted Decl. ¶¶ 3-6.
In evaluating the reasonableness of a requested fee award, the seventh factor requires the Court to compare the requested award to those approved in similar cases. The Third Circuit has found that, in common fund cases such as this one in which the percentage-of-recovery methodology is used, the fees typically awarded to class counsel generally range between 19% to 45% of the settlement fund. General Motors, 55 F.3d at 822. Here, the total requested award of fees and expenses of $8,332,500 is exactly 33.33%
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of the Settlement Amount and represents 25% of the aggregate amount of the constructive common fund. Subtracting unreimbursed expenses of $619,793.14, the requested attorneys’ fee comprise 30.5% of the Settlement Amount and 23% of the aggregate constructive common fund. Thus, by any measure, the requested award of attorneys’ fees and expenses is well within the reasonable range of awards approved by the Third Circuit, and is consistent with similar class action settlements. Compare In re Ins. Brokerage Antitrust Litig., 297 F.R.D. 136, 155 (D.N.J. 2013) (approving fee award equal to 33.33% of $10.5 million settlement); Merck, 2010 WL 547613, at *11 (approving fees equal to 33.33% of $41.5 million settlement fund); Milliron v. T-Mobile USA, Inc., No. 08-4149, 2009 WL 3345762, at *14 (D.N.J. Sept. 10, 2009) (approving fees equal to 33.33% of $13.5 million settlement fund). Accordingly, this factor also supports approval of the requested fee award.
The eighth factor, which considers the value of the benefits obtained by the class that are fairly attributable to the efforts of class counsel relative to outside groups, such as government agencies, also weighs in favor of approving the requested award for attorneys’ fees and expenses. Although there was separate litigation concerning FCC regulations relating to excess prison telephone rates and fees, the surviving claims in this case were independent of that litigation and not dependent on the efforts of anyone other than Class Counsel. See Valeant, 2020 WL 3166456, at *14.
The requested award of fees and expenses relative to the size of the recovery and constructive common fund is also in line with contingent fees that are routinely negotiated in the private marketplace. Merck, 2010 WL 547613, at *12 (citing cases). As such, the ninth factor also supports approval of the requested award.
The final factor asks the Court to consider any innovative terms of the Settlement. While perhaps not innovative, the Settlements ability to provide immediate relief to the most vulnerable Class Members in the form of credits to their respective AdvancePay accounts without the need to file a proof of claim, is significant and goes beyond simple cash payments to Class Members. Accordingly, the Court concludes that this factor also weighs in favor of approving the requested award of fees and expenses.
2. Lodestar Cross-Check
The Third Circuit has encouraged courts in this District to “cross-check” the reasonableness of percentage fee awards against the lodestar method. See Rite Aid Corp. Sec. Litig., 396 F.3d at 305-06. Here, the total lodestar amount for Class Counsel is $5,410,603.07.4 Cecchi Decl. ¶ 9, 13, 14; Plaisted Decl. ¶ 8. Subtracting the portion of the $8,332,500 award comprised of unreimbursed expenses, this results in a lodestar multiplier of 1.43, well within the reasonable range approved by the Third Circuit and courts in this District. See Prudential I, 148 F.3d at 341 (“Multiples ranging from one to four are
4 In the Motion, Class Counsel list this figure as $5,112, 355.57. The Court, upon review of the submissions and statements made in the accompanying declarations of Class Counsel, believes $5,410,603.07 is the accurate lodestar.
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frequently awarded in common fund cases when the lodestar method is applied.” (quotations omitted)). The Court thus concludes that the requested fee award is also reasonable under the lodestar method.

3. Expenses

As part of the $8,332,500 fee award, the Class Counsel requests payment of $619,791.14 in unreimbursed expenses. Class Counsel is “entitled to reimbursement of expenses that were adequately documents and reasonably and appropriately incurred in the prosecution of the class action.” In re Safety Components, Inc. Sec. Litig., 166 F. Supp. 2d 72, 108 (D.N.J. 2001). Here, Class Counsel has produced an itemized list of expenditures and has certified that detailed records with respect thereto are maintained by and reflected in the respective firms’ books and records. Cecchi Decl. ¶¶ 11-12; Plaisted Decl. ¶¶ 10-11. In addition, the Court concludes that the expenditures for which Class Counsel seek reimbursement, such as expert or consultant fees, computer research, and travel, “are the type of expenses routinely charged to hourly paying clients and, therefore, should be reimbursed out of the common fund.” In re Ocean Power Techs., Inc., No. 3:14-CV-3799, 2016 WL 6778218, at *29 (D.N.J. Nov. 15, 2016). Accordingly, Class Counsel’s request for reimbursement of $619,791.14 in expenses is approved.

4. Case Contributions to Representative Plaintiffs

Finally, Class Counsel requests approval of $15,000 awards to each of the four Class Representatives. The Court finds the requested case contribution awards to be fair and reasonable. Class Representatives provided the information necessary to file the Complaint, produced documents and sat for depositions, and have adequately represented the Class for over seven years. Accordingly, the Court will approve case contribution awards of $15,000 for each of the four named Class Representatives.

III.

CONCLUSION

For the reasons stated above, Plaintiffs’ motion is GRANTED, and the Settlement, request for attorneys’ fees and expenses and case contribution awards is APPROVED.

Date: October 20, 2020

/s/ William J. Martini WILLIAM J. MARTINI, U.S.D.J.

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 Case 2:13-cv-04989-WJM-MF Document 116 Filed 02/11/16 Page 1 of 19 PageID: 1104

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

BOBBIE JAMES, et al.,
Plaintiffs,
v.
GLOBAL TEL*LINK CORPORATION, INMATE TELEPHONE SERVICE and DSI-ITI LLC,
Defendants.

Civ. No. 13-4989 (WJM) OPINION

This matter comes before the Court on Defendants’ motion to compel arbitration and stay this proceeding in the interim. The Plaintiffs bring this putative class action over fees charged by the Defendants for phone calls made by inmates from pay phones in New Jersey correctional institutions. The Court decides this motion without oral argument. Fed. R. Civ. P. 78(b). For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART the Defendants’ motion.
I. BACKGROUND
A. Factual Background
Global Tel*Link Corporation, Inmate Telephone Service, and DSI-ITI LLC (collectively, “the Defendants” or “GTL”) manage telecommunications services at state and local correctional facilities in New Jersey and other states. (Complaint ¶ 12, ECF No. 1.) The Defendants are all Delaware corporations, and Plaintiffs allege that they operate as a single economic unit. (Id. ¶¶ 14-16.) The State of New Jersey gave GTL the exclusive right to provide telecommunications services for inmates so that they may communicate with family, friends, and other approved persons outside the prisons. (Id.) GTL’s service can be accessed by users telephonically through an interactive voice response (“IVR”) system—using standardized scripts and prompts—or via GTL’s website. (Declaration of John W. Baker (“Baker Dec’l”) ¶ 2, ECF No. 95-2.) Through either of these methods, users can sign up for an account and deposit funds. (Id.)

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Those who create an account through GTL’s website are shown a copy of GTL’s Terms of Use (“TOU”) within their browser, and the user must click a button labeled “Accept” in order to complete the account creation process. (Id.) In contrast, users of the IVR system receive the following notice over the phone:
Please note that your account, and any transactions you complete, with GTL, PCS, DSI-ITI, or VAC are governed by the terms of use and the privacy statement posted at www.offenderconnect.com. The terms of use and the privacy statement were most recently revised on July 3, 2013.
(Id.) GTL states that every user of the IVR service receives this notice before he or she can proceed to the remainder of the options. (Defendants’ Brief in Support of Motion to Compel Arbitration (“Def. Brief”) at 13.) However, unlike the website, users of the IVR system do not have to affirmatively register assent to the TOU. (See Baker Dec’l ¶ 2.)
The TOU contains an arbitration agreement and a corresponding class-action waiver. (Id. ¶ 4.) Users have thirty days in which to opt-out of both of these provisions. (Baker Dec’l, Ex. A (“TOU”) § R(4), ECF No. 95-2.) The TOU also notes that use of the service (or clicking “Accept” when registering online) constitutes acceptance of the terms. (Id. §§ A-B.) Similar to the opt-out provisions, users have thirty-days in which to cancel their account if they do not agree to the TOU’s terms. (Id.) Prior to July 2013, the TOU stated that GTL may amend the terms and that it would “post any material changes to [the TOU] on [its] Site with a notice advising of the changes.” (Baker Dec’l, Ex. B § R, ECF No. 952.) Should a user not agree with the updated terms, they have fifteen days within which to cancel their account without being bound by the new TOU. (Id.) GTL alleges that a message was posted on its website’s frontpage on or about July 2, 2013, informing users of the updated TOU. (Baker Dec’l ¶ 6.) The version of the TOU prior to July 2013 also stated that use of the service constituted acceptance of the terms. (Baker Dec’l, Ex. B § A.)
The plaintiffs in this action (Bobbie James, Crystal Gibson, Betty King, John Crow, and Barbara, Mark, and Milan Skladany, collectively, the “Plaintiffs”) are inmates or friends or family of inmates, and used GTL’s calling services in order to communicate with their loved ones. (Complaint ¶ 39.) GTL alleges that Crystal Gibson opened an account through GTL’s website on July 29, 2014. (Baker Dec’l
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¶ 8.) Prior to this, Gibson also opened an account through the IVR system on June 13, 2014, but closed it the same day. (Id.) However, Gibson states that she became a customer of GTL in approximately April 2011, but does not provide records for such an account. (Declaration of Crystal Gibson ¶ 2, ECF No. 99-4.) Bobbie James and Barbara and Milan Skladany opened accounts prior to July 2, 2013, but continued using their accounts after this date. (Baker Dec’l ¶ 9.) Betty King opened her first account on October 18, 2006, and closed it on July 9, 2013. She then opened a second account on November 15, 2014, through the IVR system. (Id. ¶ 10.) Lastly, GTL has not provided details for accounts opened by Dr. John Crow or Mark Skladany. Though Mr. Skladany’s declaration does not state when he began using the service, the Complaint notes that Dr. Crow opened an account with GTL in April 2013. (Complaint ¶ 59.)
B. Procedural Background
The Plaintiffs filed this putative class action in August 2013 alleging violations of the New Jersey Consumer Fraud Act (“NJCFA”), the Federal Communications Act (“FCA”), the Takings Clause of the Fifth Amendment, and various New Jersey public utilities statutes, as well as alleging unjust enrichment and seeking declaratory judgment. GTL moved to dismiss or stay this case, arguing that the Federal Communications Commission (“FCC”) has primary jurisdiction. (Docket No. 20.) In an opinion dated September 8, 2014, the Court stayed this proceeding until either: (a) the FCC made a determination as to whether the challenged charges and practices violated the FCA, (b) the Plaintiffs voluntarily dismissed the FCA cause of action, (c) the Plaintiffs failed to file an administrative complaint with the FCC within 90 days from the filing of the D.C. Circuit’s opinion, or (d) the parties made a showing of good cause to lift the stay. (Docket Nos. 35, 36.) Following the Court’s opinion and order, Plaintiffs moved to withdraw the relevant counts from their complaint that had prompted this Court to stay the action. (Docket No. 38.) On November 26, 2014, GTL filed its answer and then filed an amended answer on March 9, 2015. (Docket Nos. 46, 67.) In the amended answer, GTL raised the possibility of arbitration, noting that some of the Plaintiffs (and the putative class members) may be subject to binding arbitration. (Defendants’ Amended Answer at 16, ECF No. 67.) On May 6, 2015, GTL sought leave to file a motion to compel arbitration, which was granted on July 14, 2015. (Docket No. 75.) Subsequently, GTL filed the instant motion. In the interim, after GTL’s first answer and prior to the filing of the instant motion, the parties engaged
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in discovery pursuant to a scheduling order entered on February 17, 2015. (Docket No. 61.)
II. LEGAL STANDARD
Federal law presumptively favors the enforcement of arbitration agreements. Harris v. Green Tree Fin. Corp., 183 F.3d 173, 178 (3d Cir. 1999). “The question of arbitrability—whether a[n] . . . agreement creates a duty for the parties to arbitrate the particular grievance—is undeniably an issue for judicial determination.” AT&T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 649 (1986). In considering the propriety of arbitration, a court must make “a twostep inquiry into (1) whether a valid agreement to arbitrate exists and (2) whether the particular dispute falls within the scope of that agreement.” Trippe Mfg. Co. v. Niles Audio Corp., 401 F.3d 529, 532 (3d Cir. 2005). “When determining both the existence and the scope of an arbitration agreement, there is a presumption in favor of arbitrability.” Id.
The Third Circuit has held that when arbitrability is apparent on the face of the complaint (and/or documents relied upon in the complaint) a motion to compel arbitration should be analyzed under the Rule 12(b)(6) standard. Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 773–74 (3d Cir. 2013). However, if either the complaint does not facially establish arbitrability or if the non-movant submits enough evidence to put the question of arbitrability in issue, then the motion to compel arbitration “should be judged under the Rule 56 standard.” Id. Under the summary judgment standard, the moving party must demonstrate that no genuine issue of material fact exists “concerning the formation of the [arbitration agreement].” Par-Knit Mills, Inc. v. Stockbridge Fabrics Co., 636 F.2d 51, 54 (3d Cir. 1980). Moreover, the court must give the non-moving party the “benefit of all reasonable doubts and inferences.” Id.
While the moving party has the burden of showing that the parties executed an agreement to arbitrate, see Schwartz v. Comcast Corp., 256 F. App’x 515, 519 (3d Cir. 2007), if the moving party fulfills this showing, the agreement to arbitrate is found presumptively valid and enforceable, 9 U.S.C. § 2. Then, it is the nonmoving party that bears the burden of proving that the agreement is invalid. See AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011); Quilloin v. Tenet HealthSystem Philadelphia, Inc., 673 F.3d 221, 228-29 (3d Cir. 2012).
III. DISCUSSION
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A. Agreement to Arbitrate
“Before a party to a lawsuit can be ordered to arbitrate and thus be deprived of a day in court, there should be an express, unequivocal agreement to that effect.” Par–Knit Mills, 636 F.2d at 54. Plaintiffs contest this fundamental requirement for the instant motion, arguing that they never assented to the arbitration agreement contained within GTL’s TOU.
“To determine whether the parties have agreed to arbitrate, [courts] apply ‘ordinary state-law principles that govern the formation of contracts.’” Century Indem. Co. v. Certain Underwriters at Lloyd’s, London, subscribing to Retrocessional Agreement Nos. 950548, 950549, 950646, 584 F.3d 513, 524 (3d Cir. 2009). The parties have not briefed the issue of choice-of-law. A number of the Plaintiffs in this matter are New Jersey residents and, though the Defendants are incorporated in Delaware with principal places of business in Alabama, they provided their telecommunications services in the State of New Jersey. (Complaint ¶¶ 6-17.) In turn, the parties both cite to and apply New Jersey law in their papers. Consequently, the Court concludes that New Jersey law applies to the issue of contract formation underlying the instant motion.
i. Motion to Strike
Before delving into the merits of GTL’s motion, the Court first tackles the motion to strike raised by Plaintiffs in their opposition brief. Plaintiffs ask this Court to strike legal conclusions made by John F. Baker in his declaration. GTL, in turn, asks the Court to strike similar statements in the Plaintiffs’ declarations. The Court denies both motions to strike. The Court will sua sponte disregard any legal arguments and conclusions in these declarations if and as necessary to its analysis.
Second, Plaintiffs argue that GTL’s failure to produce the Post-2013 IVR script in a timely fashion necessitates that the Court exclude it pursuant to Rule 37(c)(1) of the Federal Rules of Civil Procedure. There are five factors to consider when determining whether to exclude evidence for non-disclosure: “(1) the ‘prejudice or surprise’ of the party against whom the evidence is brought, (2) the ability of that party to cure the prejudice, (3) the extent to which including the evidence would disrupt the orderly and efficient trial of the case, (4) bad faith or willfulness in failing to comply with the court's order, and (5) the importance of the evidence.” Warner Chilcott Labs. Ireland Ltd. v. Impax Labs., Inc., No. 8-CV-
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6304, 2012 WL 161804, at *2 (D.N.J. Jan. 19, 2012) (citing Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 904–05 (3d Cir. 1977)). But, should the evidence be considered critical, its exclusion is deemed an extreme sanction, which should not be normally imposed “absent a showing of willful deception or flagrant disregard of a court order by the proponent of the evidence.” Pennypack, 559 F.2d at 905.
As a preface, the Third Circuit has directed that cases should be “disposed of on merits whenever practicable.” Hill v. Williamsport Police Dep’t., 69 F. App’x 49, 51 (3d Cir. 2003). There is certainly warrant to Plaintiffs’ argument that GTL should have produced the entirety of the IVR script in its original motion. However, as to Plaintiffs’ assertion that the script should have been produced before the motion, fact discovery was still open when the instant motion was filed, (See Docket No. 102), and the Plaintiffs have not cited to—nor has the Court been able to find—an instance where evidence was stricken prior to the closing of discovery. In addition, the script is critical evidence, as it is the basis on which the Court must decide whether GTL and its users agreed to arbitrate their disputes. See infra at 8. Excluding the scripts would, thus, hamper an orderly adjudication of GTL’s motion by the Court. Lastly, while the record demonstrates that discovery between the parties has been contentious to some degree, the Court fails to find evidence that GTL acted with “bad faith or willfulness in failing to comply” with this Court’s discovery orders. Therefore, the Court denies Plaintiffs’ motion to strike the Post-2013 IVR scripts.
ii. Accounts Created via the Phone
Because users of GTL’s system can create and use their accounts by way of either the IVR service or the website, there are two distinct methods through which Plaintiffs could provide their assent to the arbitration clause within the TOU. The Court will, thus, tackle each medium separately in order to determine whether Plaintiffs made an “express, unequivocal agreement” to arbitrate their claims.
Plaintiffs James, King, and Barbara and Milan Skladany created their accounts through the IVR system.1 As a threshold matter, the parties have not
1 It appears that Gibson created a short-lived account through the IVR system. However, Plaintiffs have not made clear whether Gibson has any claims arising from this account. Should such claims exist, the reasoning here would apply equally to any obligation Gibson has to arbitrate such claims.
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pointed to and the Court is unaware of any decisions that have addressed the issue of contract formation through an automated phone service—where users are notified of the existence of a service’s terms and conditions over the phone and are, subsequently, bound by them. In this case, GTL informed users—on every call— that the service they were providing was governed by a TOU and where users could obtain these terms—on its website. (See Baker Dec’l ¶ 2.) However, users were not required to engage in any affirmative conduct to demonstrate acceptance of the TOU. Based on this, Plaintiffs argue that they cannot be ordered to arbitrate, as they did not have “full knowledge of [their] legal rights” and did not assent “to surrender those rights.” Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 442 (2014) cert. denied, 135 S. Ct. 2804 (2015).
As with any other contract, for an agreement to arbitrate to be “legally enforceable” the parties must (i) “agree on essential terms and [(ii)] manifest an intention to be bound by those terms,” i.e. the contract must be the product of mutual assent and requires a “meeting of the minds.” Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435 (1992) (cited with approval in Elliott & Frantz, Inc. v. Ingersoll-Rand Co., 457 F.3d 312, 323 (3d Cir. 2006)); see also Atalese, 219 N.J. at 442. Agreement is predicated on the parties being “fairly informed of the contract’s terms before entering into the agreement.” Hoffman v. Supplements Togo Mgmt., LLC, 419 N.J. Super. 596, 606 (N.J. Super. Ct. App. Div. 2011) (quoted with approval in Weisman v. New Jersey Dep't of Human Servs., 982 F. Supp. 2d 386, 394 (D.N.J. 2013) aff'd 593 F. App'x 147 (3d Cir. 2014)). This is the “reasonable notice” standard and it “is a question of law for the court to determine.” Caspi v. Microsoft Network, L.L.C., 323 N.J. Super. 118, 126 (N.J. Super. Ct. App. Div. 1999) (quoted with approval in Liberty Syndicates at Lloyd's v. Walnut Advisory Corp., No. 09-CV-1343, 2011 WL 5825777, at *3 (D.N.J. Nov. 16, 2011)). Consequently, the manifestation of assent requires an “unqualified acceptance” on the part of the offeree. Weichert, 128 N.J. at 435. Such “[a]cceptance can be express, creating an express contract, or implied by conduct, creating a contract implied-in-fact.” Liberty Syndicates, 2011 WL 5825777, at *3.
The Court finds that these prerequisites of contract formation are equally applicable to users of telecommunication services, such as the ones in the instant action. See, e.g., Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2d Cir. 2004) (“While new commerce on the Internet has exposed courts to many new situations, it has not fundamentally changed the principles of contract.”) With the proliferation of contracts over the Internet between companies and their end users,
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New Jersey courts—state and federal—have applied these fundamental precepts to determine the enforceability of such contracts. See, e.g., Liberty Syndicates, 2011 WL 5825777, at *6; Hoffman, 419 N.J. Super. at 612; Holdbrook Pediatric Dental, LLC v. Pro Computer Serv., LLC, No. 14-CV-6115, 2015 WL 4476017, at *7 (D.N.J. July 21, 2015). In particular, the Court finds similarity between the method of notice and assent employed by GTL in this case and those used in “browsewrap” agreements, where “by merely using the services of . . . the website [] the user is agreeing to and is bound by the site’s terms of service.” Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 837 (S.D.N.Y. 2012). In determining the validity of “browsewrap” agreements, courts look to whether users were provided with a “reasonably conspicuous notice of the existence of contract terms” and whether the user registered an “unambiguous manifestation of assent to these terms.” Specht v. Netscape Commc'ns Corp., 306 F.3d 17, 35 (2d Cir. 2002); see also Hoffman, 419 N.J. Super. at 609 (noting that Specht’s application of reasonable notice under California law was similar to New Jersey law). Accordingly, the Court will analyze whether “the specifics surrounding agreement revealed either that the user knew or should have known about the existence of the [terms of use] that contained the forum selection clause,” Liberty Syndicates, 2011 WL 5825777, at *4, and whether Plaintiffs’ use of the service is sufficient to manifest assent to the arbitration agreement within.
a) Reasonable Notice of Terms
Plaintiffs were put on constructive notice as to the existence of the TOU and the fact that GTL’s service was governed by the terms therein. Since neither party has put forth evidence that any of the Plaintiffs had actual knowledge of the agreement, the Court will instead determine “reasonable notice” based on whether a reasonably prudent user “would have known of the existence” of the arbitration agreement. Specht, 306 F.3d at 31. The IVR system provided an audio notice regarding the presence of terms of use at the outset—before customers could proceed to the remainder of the options—and users were informed how they could access the TOU, which was freely available on GTL’s website. (See Baker Dec’l ¶ 2.) This prominent placement was sufficient to put users on inquiry notice as to the existence of the TOU. See, e.g., Ticketmaster L.L.C. v. RMG Technologies, Inc., 507 F. Supp. 2d 1096, 1107 (C.D. Cal. 2007) (finding notice where the homepage displayed a warning regarding the presence of terms of use and the hyperlink to the terms were available on every page). Cf. Specht, 306 F.3d at 31 (finding reasonable notice lacking where the terms were placed on a “submerged
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screen” and “did not carry an immediately visible notice of [their] existence”); In re Zappos.com, Inc. Customer Data Sec. Breach Litig., 893 F. Supp. 2d 1058, 1064 (D.Nev. 2012) (finding lack of notice regarding the Terms and Conditions, which were buried in the middle to bottom of every page and amongst other links); Hines v. Overstock.com, Inc., 668 F. Supp. 2d 362, 367 (E.D.N.Y. 2009) aff'd 380 F. App’x 22 (2d Cir. 2010) (same). Moreover, the message was repeated each time a user called into the service. See, e.g., Verio, 356 F.3d at 401 (imputing knowledge of the terms of use based on the users’ repeated use of the site and exposure to the accompanying notice); Cairo, Inc. v. Crossmedia Servs., Inc., No. C 04–04825, 2005 WL 766610, at *5 (N.D. Cal. Apr. 1, 2005) (finding reasonable notice where every page had a notice stating the existence of the “Terms of Use.”) The medium employed by the parties to transact their business necessitates a consideration of what qualifies as reasonable and, as Plaintiffs acknowledge, it would be “virtually impossible for the terms and conditions including the arbitration clause to be available to a customer on the phone.”2 (Plaintiffs’ Opposition to Motion to Compel Arbitration (“Pl. Opp.”) at 12, ECF No. 99.) Thus, the Court finds that GTL’s notice was sufficient to draw a reasonably prudent user’s attention to the existence of the TOU and the arbitration clause within, presenting it in a conspicuous manner in light of the medium of communication used by GTL’s service.
b) Unqualified Assent
Moving to the second prerequisite—acceptance—the Court is faced with two separate issues: (i) whether New Jersey law allows for assent through use and (ii) whether the notice needed to inform users that they were providing acceptance in this fashion.3 Under New Jersey law, “[s]ilence does not ordinarily manifest
2 Similarly, Plaintiffs’ assertion that the IVR notice should have informed users as to the presence of the arbitration clause within the TOU is unavailing. “Arbitration clauses are not singled out for more burdensome treatment than other waiver-of-rights clauses under [New Jersey] state law.” Atalese, 219 N.J. at 444. Plaintiffs provide no reason why the arbitration provision should have been distinguished for inclusion on the IVR notice and to find that Plaintiffs “are not bound by [the arbitration] clause would be equivalent to holding that they were bound by no other clause either.” Caspi, 323 N.J. Super. at 126.
3 Plaintiffs argue that GTL should have required users to provide their assent through the IVR system—for example, by pressing a number on their keypad to register acceptance of the TOU. Plaintiffs’ argument is unpersuasive. For one, New Jersey law does not require that assent be provided in this way. Second, any assent procured by asking users to agree to terms they have not had the opportunity to review would be plainly void.
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assent, but the relationships between the parties or other circumstances may justify the offeror’s expecting a reply and, therefore, assuming that silence indicates assent to the proposal.” Weichert, 128 N.J. at 436-37 (1992) (citing Johnson & Johnson v. Charmley Drug Co., 11 N.J. 526, 539 (1953)). Courts in New Jersey (both state and federal) have extended the principle of assent through silence to “use,” finding assent where the offeree was given notice of terms and proceeded to use the services of the offeror. See, e.g., Novack v. Cities Service Oil Co., 149 N.J. Super. 542, 548 (N.J. Super. Ct. Ch. Div. 1977) aff’d sub nom. Novak v. Cities Serv. Oil Co., 159 N.J. Super. 400 (N.J. Super. Ct. App. Div. 1978) (finding that “acceptance or use of the card by the [cardholder] makes a contract between the parties according to” the terms of the cardholder agreement); CACH of NJ, LLC v. Bode, No. A-1137-13T3, 2014 WL 7192550, at *2 (N.J. Super. Ct. App. Div. Dec. 19, 2014) (“Use of a credit card creates a contract between the parties according to its terms”); Ellin v. Credit One Bank, No. 15-CV-2694, 2015 WL 7069660, at *3 (D.N.J. Nov. 13, 2015) (same).4
However, in order for silence or use to establish assent, the offeror must “give[] the offeree reason to understand that assent may be manifested” in such a way. Restatement (Second) of Contracts § 69 (1981). Surveying the landscape of “browsewrap” cases, the Ninth Circuit noted that “courts have been more amenable to enforcing browsewrap agreements” “where the website contains an explicit textual notice that continued use will act as a manifestation of the user’s intent to be bound” by the terms of use. Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1177 (9th Cir. 2014); see also Cairo, 2005 WL 756610, at *2, *4–5 (enforcing forum selection clause in website's terms of use notice stated: “By continuing past this page and/or using this site, you agree to abide by the Terms of Use for this site, which prohibit commercial use of any information on this site.”) Courts base enforceability on such a notice because “conduct of a party is not
4 Plaintiffs contend that any assent obtained through use would be limited only to the offer’s essential terms, which would not include an arbitration clause. See Weichert, 128 N.J. at 437. The Court does not find this argument compelling, as New Jersey courts have included and enforced mandatory arbitration provisions that are part of agreements procured in such a manner. See, e.g., Ellin, 2015 WL 7069660, at *3 (affirming validity of agreement that put plaintiff on notice regarding the agreement’s arbitration clause and denoted acceptance by using the credit card’s services); MBNA Am. Bank, N.A. v. Bibb, No. A-4087-07T2, 2009 WL 1750220, at *4 (N.J. Super. Ct. App. Div. June 23, 2009) (stating that defendant was required to arbitrate with the plaintiff bank since the credit card agreement specified that “when defendant ‘use[]d [the] account, [she] agree[d] to’ its terms.”)
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effective as a manifestation of his assent unless he . . . knows or has reason to know that the other party may infer from his conduct that he assents.” Restatement (Second) of Contracts § 19 (1981). Since a contract is formed and a user is bound by the terms and conditions immediately upon using the service, such explicit notice at the outset forms the necessary predicate to establishing an “unambiguous manifestation of assent” to those terms.
Here, users were given notice that GTL’s service was “governed by the terms of use.” But, the IVR notification did not inform them that use of the service alone constituted an acceptance of these terms. (See Baker Dec’l ¶ 2.) “Unqualified acceptance” is incumbent on each party understanding at the moment of contract formation—from when they will be bound by the terms—the manner in which they are providing assent. Without being put on notice that their use would be interpreted as agreement, a reasonably prudent user of the IVR service had neither the knowledge nor intent necessary to provide “unqualified acceptance.”5 See Be In, Inc. v. Google Inc., No. 12-CV-03373-LHK, 2013 WL 5568706, at *9 (N.D. Cal. Oct. 9, 2013) (stating that because only a link was provided to the terms of use there was no grounds to find that defendants were put on notice that mere use constituted assent); Holdbrook, 2015 WL 4476017, at *6 (finding no enforceable contract where “there [was] no statement that signing the agreement indicated acceptance of the “Terms and Conditions,” nor [was] there an instruction to sign the contract only if [offeree] agreed to the additional terms.”) Consequently, without an understanding that they were accepting to be bound by the TOU, which included an agreement to arbitrate, there was no “legally enforceable contract” created between GTL and the Plaintiffs.
5 Though the first clause of the TOU informed users that their use of the service would constitute acceptance of the terms, such notification was in essence too late—occurring after GTL intended to bind its users to the agreement. See Hines, 668 F. Supp. 2d at 367. Similarly, unlike in Verio—where the Second Circuit found that repeatedly receiving a notice of terms after the defendant made its query (i.e. called into the service) was sufficient to ascribe notice, and thus ameliorating the ex post facto nature of the notice—the IVR notification’s essential failure to inform callers that their assent would be garnered through use cannot be remedied by relying on the fact that users heard the notice on multiple occasions. See Verio, 356 F.3d at 401-02 (finding that defendant was bound by terms where notice informed accessors of the data that submission of their query constituted assent to the plaintiff’s terms and that defendant repeatedly saw this message in its daily access of data).
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iii. Assent to Updated Terms of Service
Since Plaintiffs who used GTL’s IVR service did not manifest assent to the TOU, it is axiomatic that they did not agree to the clause allowing the company to modify the terms on a one-party basis and delineating the manner by which users would be notified of such amendments. Thus, even though GTL alerted IVR users as to when the TOU was last updated, such notification—based on a nonenforceable contract and without telling users that use constituted assent to the amended terms—was insufficient to bind users to the arbitration clause contained within the modified TOU. Cf. Coiro v. Wachovia Bank, N.A., No. 11-CV-3587, 2012 WL 628514, at *3 (D.N.J. Feb. 27, 2012) (finding that plaintiff was bound by arbitration clause in modified agreement where the initial agreement stated that defendants could modify the terms of the agreement so long as plaintiff had thirtyday notice within which to close her account if she disagreed); Mayer v. Verizon New Jersey, Inc., No. 13-CV-3980 (D.N.J. May 6, 2014), ECF No. 31 (finding acceptance of amendments through continued use of services).
iv. Accounts Opened Through the Internet
According to GTL’s records, Gibson was the only plaintiff that created an account through its website. (See Baker Dec’l ¶ 8.) As part of this process, GTL asserts that, on a desktop computer, Gibson would have been presented with all of the terms of the TOU on the screen and she was required to click an “Accept” button in order to move forward in the account creation process.6 (See id. ¶ 2.) Gibson confirms this in her declaration, stating that she “check[ed] off the box for the terms of service” when she setup her account over the Internet. (Gibson Dec’l ¶ 7.) This form of electronic contract is referred to as a “clickwrap” agreement, where users are required to take affirmative action to manifest assent and are informed that such action will comprise their assent to the displayed terms. See Liberty Syndicates, 2011 WL 5825777, at *4. Numerous courts, including in this District, have enforced such agreements. See, e.g., Davis v. Dell, Inc., No. 07-CV630, 2007 WL 4623030, *4-5 (D.N.J. Dec. 28, 2007) aff’d, No. 07-630 (RBK), 2008 WL 3843837 (D.N.J. Aug. 15, 2008); Feldman v. Google, Inc., 513 F. Supp. 2d 229, 237 (E.D. Pa. 2007); TradeComet.com LLC v. Google, Inc., 693 F. Supp. 2d 370, 377–78 (S.D.N.Y. 2010). Therefore, since Gibson was presented with all
6 Since Gibson would have been presented with only this version of the site (and not the mobile version that went live in December 2014), the Court will restrict its analysis accordingly.
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of the terms of the TOU—giving reasonable notice of the arbitration agreement— and because Gibson provided her assent to the TOU, she is required to arbitrate her claims against GTL, which fall under the broad scope of the arbitration clause. See, e.g., Caspi, 323 N.J. Super. at 122 (affirming lower court’s decision to enforce arbitration clause where agreement “appear[d] on the computer screen in a scrollable window next to blocks providing the choices ‘I Agree’ and ‘I Don’t Agree’” and proceeding with registration required assent, which plaintiff provided.)
B. Duress
Because the Court has determined that Gibson assented to arbitrate her claims against the Defendants, the Court will now analyze whether such assent was garnered by GTL under duress and whether GTL waived its right to arbitrate the claims.7 Section 2 of the Federal Arbitration Act (“FAA”) “permits arbitration agreements to be declared unenforceable ‘upon such grounds as exist at law or in equity for the revocation of any contract.’” Concepcion, 563 U.S. at 339. These grounds include ‘generally applicable contract defenses, such as fraud, duress, or unconscionability.’” Id. “The FAA ‘instructs courts to refer to principles of applicable state law’ in order to determine the standards for such contract defenses.” Trippe, 401 F.3d at 532.
In its reply, GTL argues that because the arbitration clause contains a “delegation provision” any affirmative defense as to the invalidity of the arbitration clause must be referred to the arbitrator, basing the argument on the Supreme Court’s holding in Rent-A-Center, West, Inc. v. Jackson. 561 U.S. 63, 130 S. Ct. 2772, 177 L. Ed. 2d 403 (2010). However, the Third Circuit distinguished the Supreme Court’s holding in Rent-A-Center, leaving it inapplicable to the instant action. Quilloin, 673 F.3d 221.
In Rent-A-Center the plaintiff, signed a contract to arbitrate disputes arising out of his employment, which contained within it an agreement to arbitrate arbitrability—a delegation clause similar to the one in the instant action. Id. at 65. As the Third Circuit opined, due to “the confusion caused by an agreement to
7 Though the duress and waiver defenses are only applicable to Gibson (as described by the Court supra), since these defenses were raised by all of the Plaintiffs and Plaintiffs bring this suit on behalf of a putative class, the Court will continue referring to Plaintiffs collectively with respect to these defenses.
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arbitrate nested within another agreement to arbitrate, the Rent-A-Center Court found it necessary to distinguish between the overall arbitration agreement [(the contract to arbitrate)], and the agreement to arbitrate arbitrability [(the delegation clause)].” Quilloin, 673 F.3d at 229. The Supreme Court’s decision, thus, turned on the fact that “the plaintiff ‘challenged only the validity of the contract as a whole’ rather than the validity of the delegation clause,” and under prior jurisprudence the question of arbitrability of the contract itself “must go to an arbitrator.” Id.
Here, Plaintiffs have taken care to raise their duress argument specifically towards the arbitration clause and not the TOU as a whole. When “a party challenges the validity under § 2 of the precise agreement to arbitrate at issue, the federal court must consider the challenge before ordering compliance with that agreement under” the FAA. Rent-A-Center, 561 U.S. at 71.
Having determined that the duress argument is a threshold matter for the Court to resolve, the Court finds Plaintiffs’ argument unpersuasive. Under New Jersey law, the determination of duress is a two-part test: (1) a demonstration that the victim of the duress was subject to a wrongful or unlawful act or threat, and (2) that such act or threat must be one which deprives the victim of his unfettered will. See Cont'l Bank of Pa. v. Barclay Riding Academy, 93 N.J. 153, 176 (1983). “The key factor in determining whether duress exists is ‘the wrongfulness of the pressure exerted.’” Recchia v. Kellogg Co., 951 F. Supp. 2d 676, 683 (D.N.J. 2013). However, the wrongful act must entail more than “merely taking advantage of another’s financial difficulty.” Cont’l Bank, 93 N.J. at 177. Instead, the party accused of coercion must have “contributed to or caused” the financial difficulty claimed. Id. at 177.
The Court finds that Plaintiffs have failed to demonstrate the first prong of this test. GTL’s service was not the only method by which it was possible to contact inmates. Putting aside in-person visits and mail, inmates could have communicated through collect calls or by the use of funds deposited in their commissary accounts, both of which would allow the inmate to call directly. Focusing on the arbitration clause, Plaintiffs were provided thirty days in which they could opt-out of both the arbitration and the class-action waiver provisions. Where parties have a choice, but fail to act upon it, it cannot be said that they were deprived of their “unfettered will.”
C. Waiver
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Plaintiffs also argue that GTL’s decision to wait two years before filing the instant motion amounts to a waiver of the right to arbitrate. The Third Circuit has held that if “a party has acted inconsistently with the right to arbitrate,” a court may find that the party has waived its right to enforce an arbitration agreement. Nino v. Jewelry Exch., Inc., 609 F.3d 191, 208 (3d Cir. 2010) (internal quotation mark omitted). However, the Third Circuit has gone on to state that “[g]iven [the] strong preference to enforce private arbitration agreements, [courts] will not infer lightly that a party has waived its right to arbitrate” and waiver “will normally be found only where the demand for arbitration came long after the suit commenced and when both parties had engaged in extensive discovery.” Gray Holdco, Inc. v. Cassady, 654 F.3d 444, 451 (3d Cir. 2011) (internal quotation mark omitted). A determination of waiver rests on a finding that the party seeking arbitration has, through their litigation conduct, subjected the non-moving party to sufficient prejudice by failing to promptly arbitrate the dispute.
In Hoxworth v. Blinder, Robinson & Co., the Third Circuit set forth six “nonexclusive” factors that a court may use to guide its prejudice inquiry:
(1) timeliness or lack thereof of the motion to arbitrate; (2) extent to which the party seeking arbitration has contested the merits of the opposing party’s claims; (3) whether the party seeking arbitration informed its adversary of its intent to pursue arbitration prior to seeking to enjoin the court proceedings; (4) the extent to which a party seeking arbitration engaged in non-merits motion practice; (5) the party’s acquiescence to the court's pretrial orders; and (6) the extent to which the parties have engaged in discovery.
980 F.2d 912, 926-27 (3d Cir. 1992). All these factors need not be present in order for a court to justify finding waiver, and the court’s determination “must be based on the circumstances and context of the particular case.” Nino, 609 F.3d at 208. After conducting a review of the Hoxworth factors, the Court finds that Plaintiffs have failed to demonstrate sufficient prejudice to deem GTL’s right to arbitrate as waived.
i. Timeliness and Notice
Plaintiffs’ contention is primarily grounded on the length of time between their initiation of this action and GTL seeking leave to file its motion to compel
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arbitration—around two years. While Plaintiffs cite to a number of Third Circuit decisions that have found waiver for substantially shorter delays, many of these hinged on the fact that the moving party “offered no explanation . . . for its delay.” See Gray Holdco, 654 F.3d at 455; Nino, 609 F.3d at 210; see also In re Pharmacy Ben. Managers Antitrust Litig., 700 F.3d 109, 118 (3d Cir. 2012); JPMorgan Chase Bank, N.A. v. Republic Mortgage Ins. Co., No. 10-CV-6141, 2012 WL 6005384, at *4 (D.N.J. Nov. 30, 2012). The Third Circuit has stated that “the length of the time between when a party initiates or first participates in litigation and when it seeks to enforce an arbitration clause is not dispositive in a waiver inquiry.” Gray Holdco, 645 F.3d at 455. Instead, the Third Circuit has asked courts to look to the party’s “explanations for its delay.” Id. GTL offers a satisfactory explanation for waiting approximately two years before bringing the instant motion. See Thyssen, Inc. v. Calypso Shipping Corp., 310 F.3d 102 (2d Cir. 2002) (finding no waiver where defendant did not seek arbitration until more than eighteen months after suit was filed) cited with approval in Palcko v. Airborne Express, Inc., 372 F.3d 588, 598 (3d Cir. 2004).
The first thirteen months of this case were spent on GTL’s motion regarding jurisdiction. For nine of those months, the motion was under advisement with the Court, and the Court subsequently agreed with GTL and granted a stay. In light of this, the Court does not feel it is appropriate to count these nine months against GTL. Shortly after the case moved forward, as the Plaintiffs withdrew some of their claims in order to avoid the stay, GTL provided notice in an affirmative defense of its intent to seek arbitration—the third Hoxworth factor—and thereafter sought leave to file a motion to compel arbitration. See Nino, 609 F.3d at 211 (noting that disclosure of intent to seek arbitration in an answer “is an important consideration . . . for the waiver analysis.”); Healthcare Servs. Grp., Inc. v. Fay, No. 13-CV-66, 2015 WL 5996940, at *2 (E.D. Pa. Oct. 14, 2015) (finding no waiver where the motion to compel arbitration was not brought until two and a half years after the action was initiated). Cf. Gray Holdco, 654 F.3d at 457 (finding prejudice where moving party notified non-movant of intent to arbitrate on the same day that it filed its demand for arbitration with the AAA). While the twoyear period would—in the abstract—likely demonstrate a waiver of the right to arbitrate, analyzing the unique procedural history in this action evidences that this time was not spent extending the litigation to prejudice the Plaintiffs.
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ii. Contestation of the Merits
The second, fourth, fifth, and sixth Hoxworth factors aim to highlight any prejudice suffered by the non-movant as a result of the movant’s active engagement in litigation in lieu of seeking arbitration. The second Hoxworth factor looks to the “extent to which the party seeking arbitration has contested the merits of the opposing party's claims.” 980 F.2d at 927. Though a motion to dismiss can address the merits of the underlying claims, the Court does not find that to be the case here, as GTL’s motion was aimed at the threshold issue of jurisdiction. Cf. Just B Method, LLC v. BSCPR, LP, No. CIV.A. 14-1516, 2014 WL 5285634, at *10 (E.D. Pa. Oct. 14, 2014); Republic Mortgage, 2012 WL 6005384, at *4 (finding waiver after two motions to dismiss and a cross-motion for summary judgment); Hoxworth, 980 F.2d at 925-26 (finding waiver after motion to dismiss and opposition to class certification were filed). Additionally, “[t]he Third Circuit has found in the past that a single merits-based motion to dismiss did not waive a right to arbitration.” Serine v. Marshall, Dennehey, Warner, Coleman & Goggin, No. 14-CV-4868, 2015 WL 4644129, at *3 (E.D. Pa. Aug. 5, 2015) citing Wood v. Prudential Insurance Company of America, 207 F.3d 674, 680 (3d Cir. 2000). Consequently, the Court does not find that this factor weighs in favor of waiver.
iii. Non-Merits Motion Practice and Discovery
As to the fourth Hoxworth factor—engagement in “non-merits motion practice”—there has been little motion practice with regards to non-merits issues. 980 F.2d at 927. The parties have, however, engaged in a number of discoveryrelated disputes, which implicates the sixth Hoxworth factor—“the extent to which the parties have engaged in discovery.” Id. In analyzing this factor, the Third Circuit has looked to not only the extent of discovery by the parties, but also whether the movant has engaged in discovery that would have been unavailable in an arbitration, thus prejudicing the non-movant. Id. at 926. Third Circuit opinions finding waiver have had significant discovery exchanges, including multiple depositions, interrogatories, documents requests and productions, as well as discovery-related motion practice. See, e.g., Nino, 609 F.3d at 213; Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207, 224 (3d Cir. 2007); Hoxworth, 980 F.2d at 925-26; Gray Holdco, 654 F.3d at 460.
Here, the discovery, while not de minimus, does not rise to a level sufficient to constitute prejudice to the Plaintiffs. For one, a number of the discovery
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disputes seem to have been either (i) initiated by the Plaintiffs or (ii) took place after the instant motion was filed. See Maxum Found., Inc. v. Salus Corp., 779 F.2d 974, 983 (4th Cir. 1985) (finding that defendant’s participation in discovery and pretrial conferences after it had filed its motion to compel arbitration did not constitute waiver) discussed with approval in Nino, 609 F.3d at 212-13. Moreover, the discovery requested by GTL in this case—interrogatories and requests for production—seem to have been pertinent to the issue of arbitration. Lastly, there is no evidence that GTL engaged in any discovery that would not have been available in an arbitration. See, e.g., Smith v. Lindemann, No. 10-CV-3319, 2014 WL 835254, at *12 (D.N.J. Mar. 4, 2014); NN&R, Inc. v. OneBeacon Ins. Grp., No. 03CV-5011, 2006 WL 231596, at *5 (D.N.J. Jan. 30, 2006). Cf. Smith v. IMG Worldwide, Inc., 360 F. Supp. 2d 681, 688 (E.D. Pa. 2005). Consequently, the fourth and sixth factors weigh against finding waiver.
iv. Acquiescence to Pre-Trial Orders
The last factor for the Court to consider is GTL’s “acquiescence to the court’s pretrial orders,” the fifth Hoxworth factor. 980 F.2d at 927. GTL has participated without objection in a number of case management conferences, drafted and submitted a Joint Discovery Plan, negotiated a Discovery Confidentiality Order, and even negotiated and agreed to a revised scheduling order approximately a month before the instant motion was filed. See Nino, 609 F.3d at 213. Consequently, this is the sole factor that the Court finds weighs for waiver.
However, taken as a whole, the Court does not find that the fifth factor alone pushes the needle far enough to establish that GTL has waived its right to arbitrate. GTL puts forth plausible reasons for its delay in bringing the instant motion and, since the determination of the jurisdiction issue, GTL has acted in a manner consistent with the intent to arbitrate, including providing adequate notice and limiting motion practice and discovery. If “prejudice is the touchstone for determining whether the right to arbitrate has been waived by litigation conduct,” Ehleiter, 482 F.3d at 222, the Court does not find that the Plaintiffs have been prejudiced to such an extent that a finding of waiver is appropriate here.
D. Stay as to the Remaining Plaintiffs
Lastly, the Court denies GTL’s request to stay this proceeding in regards to Plaintiffs Mark Skladany and John F. Crow. Section 3 of the FAA states that if a
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Court finds that a matter is “referable to arbitration,” “on application of one of the parties [the Court must] stay the [] action until such arbitration has been had in accordance with the terms of the agreement.” 9 U.S.C.A. § 3. However, the Third Circuit has stated that “Section 3 was not intended to mandate curtailment of the litigation rights of anyone who has not agreed to arbitrate any of the issues before the court.” Mendez v. Puerto Rican Int'l Cos., 553 F.3d 709, 712 (3d Cir. 2009). As such, the determination of a stay as to parties who have not agreed to arbitrate is in the discretion of the court. Id. GTL’s stay argument centers on the fact that all of the other named Plaintiffs must arbitrate their claims. GTL argues that staying the proceeding pending the outcome of those arbitrations will save judicial resources. However, as discussed above, the Court finds that only Gibson is required to arbitrate her claims. Since, GTL will be required to continue litigating against the majority of the Plaintiffs, GTL’s economy and efficiency arguments are moot. Cf. Villano v. TD Bank, No. 11-CV-6714, 2012 WL 3776360, at *9 (D.N.J. Aug. 29, 2012) (granting stay where there was only one non-arbitrating party involved in the litigation). Furthermore, the Court finds that a stay would only serve to materially prejudice the non-arbitrating Plaintiffs. Accordingly, the Court will stay Gibson’s claims pending completion of arbitration—as mandated by the FAA—but will decline to stay the claims of the remaining Plaintiffs, who are not bound by the arbitration agreement.
IV. CONCLUSION
For the above reasons, this Court GRANTS the Defendants’ motion to compel arbitration and stay this proceeding as to Ms. Gibson, but DENIES the motion as to the remaining Plaintiffs.

Date: February 11, 2016

/s/ William J. Martini WILLIAM J. MARTINI, U.S.D.J.

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 Case 2:13-cv-04989-WJM-MF Document 251 Filed 07/15/20 Page 1 of 10 PageID: 6316

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

BOBBIE JAMES, et al. on behalf of themselves Civil Action No. 13-4989 (WJM)(MF) and all others similarly situated,

Plaintiffs v.
GLOBAL TEL*LINK CORPORATION, INMATE TELEPHONE SERVICE, and DSI-ITI LLC,
Defendants.

ORDER GRANTING PRELIMINARY APPROVAL OF PROPOSED
SETTLEMENT, AUTHORIZING DISSEMINATION OF NOTICE OF
THE SETTLEMENT, AND SCHEDULING A HEARING FOR
FINAL APPROVAL OF THE PROPOSED SETTLEMENT

WHEREAS, this matter having come before the Court by way of Plaintiffs’ motion for
preliminary approval of proposed settlement with Defendants; and
WHEREAS on August 6, 2018, the Court certified a Class consisting of:
All persons of the United States who, between 2006 and 2016, were incarcerated in a New Jersey prison or correctional institution and who used the phone system provided by Defendants, or who established an [AdvancePay] account with Defendants in order to receive telephone calls from a person incarcerated in New Jersey, excluding Essex County prior to June 2010, or persons receiving calls from persons incarcerated in Essex County prior to June 2011; and
WHEREAS, on May 28, 2020, Plaintiffs, individually and on behalf of the Class, and
Defendants entered into a Settlement Agreement (the “Settlement Agreement”), which, if finally
approved by the Court, will result in the settlement of all claims asserted against Defendants in the
above-captioned action (“Action”); and
WHEREAS, in full and final settlement of the claims asserted against Defendants, GTL
has agreed to pay up to $25 million in cash and credits to the Class; and
WHEREAS, Plaintiffs have moved pursuant to Fed.R.Civ.P. 23(e) for an order
preliminarily approving the Settlement Agreement, which sets forth the terms and conditions of
the Settlement with Defendants; and

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WHEREAS, Plaintiffs have further moved for this Court’s (i) approval of the manner and form of notice of the Settlement to the Class; (ii) appointment of Angeion Group, LLC as Settlement Administrator; (iii) approval of a proposed briefing schedule for (1) final approval of the Settlement and proposed plan for distribution of the Settlement to eligible Class Members and (2) Class Counsel’s application for attorneys’ fees, reimbursement of expenses and Case Contribution Awards to Class Plaintiffs; and (iv) scheduling of a date and time for the Fairness Hearing; and
WHEREAS, the parties have agreed to the entry of this Order (the “Order”); and WHEREAS, all terms with initial capitalization used in this Order shall have the same meanings as set forth in the Settlement Agreement, unless otherwise defined herein; and WHEREAS, the Court has considered the Settlement Agreement and the other documents submitted by the Parties in connection with Plaintiffs’ Motion, and good cause appearing therefor:
IT IS THIS 15th day of July, 2020, ORDERED as follows: I. Preliminary Approval of the Settlement 1. Upon review of the record, the Court finds that the Settlement Agreement resulted from arm’s-length negotiations between highly experienced counsel and falls within the range of possible approval. Therefore, the Settlement Agreement is hereby PRELIMINARILY APPROVED, subject to further consideration thereof at the Fairness Hearing described below. The Court preliminarily finds that the Settlement set forth in the Settlement Agreement raises no obvious reasons to doubt its fairness and raises a reasonable basis for presuming that it satisfies the requirements under Fed.R.Civ.P. 23 and due process so that notice of the Settlement should be given as provided in this Order.
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2. At or after the Fairness Hearing the Court shall determine, among other matters, whether the Settlement warrants final approval. II. Notice to the Class
3. The Court approves the appointment of Angeion Group, LLC as Settlement Administrator for the Settlement.
4. The Court finds that the proposed form of Notice to Class Members of the proposed Settlement (“Notice”), the proposed summary form of notice (“Summary Notice”), and the proposed methods of dissemination thereof, as set forth herein, satisfy the requirements under Fed.R.Civ.P. 23 and due process, and therefore are approved.
5. The Settlement Administrator shall cause the Notice, substantially in the form attached hereto as Exhibit 1, to be disseminated no later than August 7, 2020 (the “Notice Date”) via email to all Class Members for whom the Settlement Administrator has valid email addresses and via first class mail, postage prepaid, to each Class Member for whom the Settlement Administrator has a valid mailing address but no valid email address. A Claim Form, substantially in the form attached hereto as Exhibit 2, will be included with the Notice.
6. The Settlement Administrator shall cause the Summary Notice, substantially in the form attached hereto as Exhibit 3, to be published in the Star Ledger, the South Jersey Times and the Prison Legal News as soon as practicable after the Notice Date.
7. On or before the Notice Date, the Settlement Administrator shall post the Notice, Claim Form and Summary Notice on the website created for the Settlement, www.gtlprisoncallsclassaction.com, and establish a settlement-specific, toll-free telephone number.
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8. On or before the Notice Date, the Settlement Administrator shall establish a post office box where Class Members can send completed Claim Forms, requests for exclusion, and other correspondence relating to the Settlement. III. Schedule and Procedure for Requesting Exclusion and Submitting Objections
9. The deadline for Class Members to request exclusion from the Class shall be September 21, 2020.
10. As set forth in the Notice, in order to request exclusion, a Class Member must either mail a written letter to the following address: Class Action Opt Out, James v. GTL Administrator, 1650 Arch Street, Suite 2210, Philadelphia, PA 19103; or email optouts@gtlprisoncallsclassaction.com.
11. The written letter or email must include the following information: (i) a statement indicating the Class Member’s desire to be excluded from the Settlement Class in James v. GTL, Civil Action No.13-4989(WJM)(MF); (ii) the Class Member’s name, address, and signature; (iii) all telephone numbers used by the Class Member for using GTL’s services, if the Class Member was an AdvancePay account holder or received collect calls from an inmate, or the Class Member’s PIN number(s) (if known), and the approximate time(s) and place(s) of incarceration if the Class Member was an inmate and paid for calling time on GTL through a debit account and/or calling cards.
12. The request for exclusion shall not be effective unless it provides the required information and is made within the time stated above or the request for exclusion is otherwise accepted by the Court. Persons or entities that request exclusion from the Class shall not be entitled to share in the benefits of the Settlement, nor be bound by any judgment whether favorable or adverse.
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13. The Settlement Administrator shall keep track of any and all requests for exclusion.

14. On or before one week prior to the Fairness Hearing, Plaintiffs’ Counsel shall file

a notice with the Court: (i) identifying those persons requesting exclusion from the Class, if any;

and (ii) informing the Court about the status and execution of the notice program as ordered herein.

15. As set forth in the Notice, Class Members who wish to object or otherwise be heard

with respect to the Settlement and to appear in person at the Fairness Hearing for the Settlement

must first send a Notice of Intention to Appear. The Notice of Intention to Appear must include:

(i) the case caption, James v. GTL, Civil Action No.13-4989(WJM)(MF); (ii) the objector’s name,

address, and telephone number, and (iii) personal information for other people (including lawyers)

who want to speak at the hearing. Written objections must include the following information: (i) a

statement indicating that the Class Member objects to the Settlement(s), the plan of distribution

and/or the request for attorneys’ fees, expenses, or Case Contribution Awards, in James v. GTL,

Civil Action No.13-4989(WJM)(MF); (ii) the objector’s name, address, telephone number, and

signature; (iii) the reasons for the objection(s) and all documents and writings that the objector

wants the Court to consider; and (iv) all telephone numbers you used to receive telephone calls

from New Jersey inmates in the case of AdvancePay customers, or the PIN number(s) (if known)

associated with your debit account(s) or GTL calling card(s) if you are a former inmate. Written

objections must be filed with the Court and mailed to the following on or before Sept. 21, 2020:

Attorneys for Plaintiffs James E. Cecchi Lindsey H. Taylor CARELLA, BYRNE, CECCHI OLSTEIN, BRODY & AGNELLO 5 Becker Farm Road Roseland, New Jersey 07068 (973) 994-1700 jcecchi@carellabyrne.com ltaylor@carellabyrne.com

Attorneys for Defendants Aaron Van Nostrand GREENBERG TRAURIG, LLP 500 Campus Drive Florham Park, New Jersey 07932 (973) 360-7900 vannostanda@gtlaw.com

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Justin P. Walder James A. Plaisted PASHMAN STEIN WALDER HAYDEN Court Plaza South 21 Main Street, Suite 200 Hackensack, NJ 07601 (201) 488-8200 jpwalder@pashmanstein.com jplaisted@pashmanstein.com

Michael R. Sklaire GREENBERG TRAURIG, LLP 1750 Tysons Boulevard, Suite 1000 McLean, Virginia 22102 (703) 714-8308 sklairem@gtlaw.com
Derek T. Ho KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, PLLC 1615 M Street, NW Suite 400 Washington, DC 20036

16. Any Class Member who does not make its objection in the manner provided above shall be deemed to have waived their right to object to any aspect of the Settlement, the Plan of Distribution, and Plaintiffs’ Counsel’s requests for attorneys’ fees, reimbursement of expenses and Case Contribution Awards to Class Plaintiffs and shall be forever barred and foreclosed from objecting to the fairness, reasonableness or adequacy of the Settlement, the Plan of Distribution or the requested attorneys’ fees and expenses, or from otherwise being heard concerning the Settlement, the Plan of Distribution or the requested attorneys’ fees and expenses in this or any other proceeding. A person can only object to the Settlement if that person is a Class Member and does not timely request exclusion from the settlement. IV. Schedule and Manner for Submitting Claim Forms
17. Class Members who are required to submit a Claim Form and wish to participate in the Settlement and be eligible to receive a payment from the Settlement Fund must complete and submit a Claim Form in accordance with the instructions contained therein. Unless the Court orders otherwise, all Claim Forms must be postmarked (if mailed) and received (if submitted online) no later than December 7, 2020. Notwithstanding the foregoing, Plaintiffs’ Counsel may,

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at its discretion, accept for processing late Claim Forms provided such acceptance does not delay the distribution of the Settlement Fund. By submitting a Claim Form, a person or entity shall be deemed to have submitted to the jurisdiction of the Court with respect to his, her, their or its claim and the subject matter of the Settlement.
18. Each Claim Form submitted must satisfy the following conditions: (a) it must be properly completed, signed and submitted in a timely manner in accordance with the provisions of the preceding paragraph; (b) if the person or entity executing the Claim Form is acting in a representative capacity, a certification of his, her or its current authority to act on behalf of the Class Member must be included in the Claim Form to the satisfaction of Plaintiffs’ Counsel or the Settlement Administrator; and (c) the Claim Form must be complete and contain no material deletions or modifications of any of the printed matter contained therein and must be signed under penalty of perjury.
19. Any Class Member who is required to submit a Claim Form and does not timely do so, or whose claim is not otherwise approved by the Court: (a) shall be deemed to have waived their right to share in the Settlement Fund; (b) shall be forever barred from participating in any distributions therefrom; (c) shall be bound by the provisions of the Settlement Agreement and the Settlement and all proceedings, determinations, orders and judgments in the Action relating thereto, including, without limitation, the judgment and the releases provided for therein, whether favorable or unfavorable to the Class; and (d) will be barred from commencing, maintaining or prosecuting any of the Released Claims against the Released Parties as more fully described in the Settlement Agreement and Notice. Notwithstanding the foregoing, late Claim Forms may be accepted for processing as set forth in ¶ 17 above.
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V. The Court’s Final Approval Schedule and Fairness Hearing Date 20. All briefs and materials in support of Plaintiffs’ Counsel’s fees and expenses
application, and any application for Case Contribution Awards to Class Plaintiffs, shall be filed with the Court no later than September 18, 2020. The applications described in this paragraph shall promptly be posted on the website created for the Settlement, www.gtlprisoncallsclassaction.com, and shall be considered as separate and apart from the Court’s consideration of the fairness, reasonableness, and adequacy of the Settlement. All briefs and materials in support of final approval of the Settlement also shall be filed with the Court no later than September 18, 2020.
21. All reply submissions, including any responses to any objections made by Class Members, shall be filed with the Court no later than October 8, 2020.
22. A hearing on final approval of the Settlement (“Fairness Hearing”) shall be held before this Court on October 15, 2020, at 1:00 p.m. in the Courtroom assigned to William J. Martini, at the United States District Court for the District of New Jersey, Martin Luther King Federal Building, 50 Walnut Street, Newark, NJ 07102. At the Fairness Hearing, the Court will, among other things, consider:
a. the fairness, reasonableness and adequacy of the Settlement with Defendants and whether the Settlement should be finally approved and consummated according to their terms;
b. whether the Court should approve the proposed Plan for Distribution of the Settlement Fund to eligible Class Members;
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c. whether Notice of the Settlement constitutes due, adequate and sufficient Notice of the Settlement meeting the requirements of due process and the Federal Rules of Civil Procedure;
d. whether the Action shall be dismissed with prejudice as to the Defendants; e. whether the release of any and all Released Claims with respect to the
Released Parties shall be deemed effective as of Final Judgment; f. whether the Releasing Parties are permanently enjoined and barred from
instituting, commencing, or prosecuting any action or other proceeding asserting any Released Claims against any Released Party; and g. whether, under Fed.R.Civ.P. 54(b), there is any just reason for delay and whether an order of dismissal as to the Released Parties shall be final and appealable and entered forthwith. 23. The Fairness Hearing may be rescheduled or continued; in this event, the Court will furnish all counsel with appropriate notice. Plaintiffs’ Counsel shall be responsible for communicating any such notice promptly to the Settlement Class by posting conspicuous notice on the website created for the Settlement, www.gtlprisoncallsclassaction.com. 24. All other proceedings in this Action against Defendants (except as permitted in the Settlement Agreement) shall be stayed pending the Fairness Hearing. 25. In the event that the Settlement does not become final, then, subject to approval of the Court, litigation of the Action against Defendants will resume in a reasonable manner to be approved by the Court upon joint application by the Parties. 26. If the Court does not grant final approval of the Settlement or the Settlement is terminated in accordance with the applicable provisions of the Settlement Agreement, the
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Case 2:13-cv-04989-WJM-MF Document 251 Filed 07/15/20 Page 10 of 10 PageID: 6325 Settlement shall be deemed null and void and shall have no further force and effect, and neither the Settlement nor the negotiations leading to it shall be used or referred to by any person or entity in this or in any other action or proceeding for any purpose. 27. Neither this Order nor the Settlement Agreement nor any Settlement-related document nor any proceeding undertaken in accordance with the terms set forth in the Settlement Agreement or in any other Settlement-related documents, shall constitute, be construed as or be deemed to be an admission or evidence of any violation of any statute or law or of any liability or wrongdoing by the Released Parties, or likewise, constitute, be construed as or be deemed to be an admission or evidence of or presumption against Plaintiffs or any other Class Member that any of their claims are without merit or infirm, that a class should not be certified, or that recoverable damages against Defendants would not have exceeded the Settlement Funds.
/s/ William J. Martini WILLIAM J. MARTINI, U.S.D.J.
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