Stuart v. Global Tel*Link Corporation

Filing 138

MEMORANDUM OPINION AND ORDER granting 92 Motion to Certify Class; see order for specifics. Signed by Honorable Timothy L. Brooks on February 3, 2017. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

IN RE GLOBAL TEL*LINK
CORPORATION ICS LITIGATION

CASE NO. 5:14-CV-5275

MEMORANDUM OPINION AND ORDER
Currently before the Court are Plaintiffs Kaylan Stuart’s, Dustin Murilla’s, Walter
Chruby’s, and Rocky Hobbs’s 1 Motion for Class Certification, Appointment of Class
Representatives and Appointment of Class Counsel (Doc. 92) and Memorandum of Law
in Support (Doc. 93-3); Defendant Global Tel*Link Corporation’s (“GTL”) Opposition (Doc.
99) and Statement of Facts in Response (Doc. 100); Plaintiffs’ Reply (Doc. 110); GTL’s
Notice of Supplemental Authority (Doc. 122) and Plaintiffs’ Response thereto (Doc. 123);
Plaintiffs’ Notices of Filing Supplemental Authority (Docs. 131, 136); and GTL’s Notice of
the FCC’s and DOJ’s Intent to Abandon and Not Defend Certain Portions of the 2015 ICS
Order (Doc. 137). For the reasons given below, Plaintiffs’ Motion is GRANTED.
I. BACKGROUND
Plaintiffs initiated this lawsuit against GTL on September 4, 2014 as a putative
class action. See Doc. 1. They allege that GTL obtained exclusive contracts to provide
telephone services to inmates at correctional facilities throughout the United States in
exchange for the payment of kickbacks to those correctional facilities known as “site
commissions,” and exploited these monopolies by charging unjust and unreasonable

1

When this Motion was filed, Mr. Hobbs had moved to intervene but since the Court had
not yet ruled on his motion, Mr. Hobbs was technically not yet a named Plaintiff in this
action. The Court subsequently granted his motion to intervene. See Doc. 125, pp. 6–9.
1

rates to users of inmate calling services, including Plaintiffs, in violation of the Federal
Communications Act (“FCA”) as well as common law. See Doc. 126, ¶¶ 1, 14–24.
Specifically, Plaintiffs contend that GTL charged them excessive rates to cover the costs
of site commissions it paid to correctional facilities, and charged them deposit fees that
unreasonably exceeded the cost of processing deposits into prepaid accounts. See Doc.
93-3, p. 23. Plaintiffs seek to recover these allegedly unjust rates and fees through two
claims for relief against GTL—one brought under 47 U.S.C. §§ 201(b) and 206, and one
brought under the common-law doctrine of unjust enrichment. See Doc. 126, ¶¶ 55–68.
Plaintiffs filed their Motion for Class Certification on June 10, 2016. See Doc. 92.
They seek certification of a nationwide class for their claims under the FCA, defined as:
All persons in the United States 2 who, at any time within the applicable
limitations period: (1) paid to use inmate calling services provided by Global
Tel*Link (including its operating subsidiaries) to make or receive one or
more interstate phone calls from a correctional facility during a period of
time when Global Tel*Link paid the facility 3 a commission of any type in
connection with the interstate calls; and/or (2) paid deposit fees to Global
Tel*Link in order to fund a prepaid account used to pay for any interstate
calls.
(Doc. 92, ¶ 1). Plaintiffs also seek certification of four subclasses for their claims under
the common law of unjust enrichment, defined as:
The Arkansas UE Subclass: All persons who, while a resident of
Arkansas, California, Connecticut, Hawaii, Indiana, Iowa, Michigan,
Nebraska, New Hampshire, South Carolina, Vermont or West Virginia,
2

Excluded from the proposed Class are any persons who paid to use GTL’s inmate calling
services in order to make or receive telephone calls from a correctional facility in New
Jersey.

3

GTL often contracts with correctional agencies, such as a state’s Department of
Corrections, that oversee multiple correctional facilities. For purposes of this Motion, and
consistent with industry practices, the term “facilities” or “facility” refers to the correctional
facilities as well as the corresponding correctional agency overseeing the correctional
facilities.
2

within the applicable limitations period, paid to use inmate calling services
provided by Global Tel*Link (including its operating subsidiaries) to make or
receive one or more interstate phone calls from a correctional facility during
a period of time when Global Tel*Link paid the facility a commission of any
type in connection with the interstate calls.
The Minnesota UE Subclass: All persons who, while a resident of
Minnesota, Alaska, Ohio, Tennessee, Utah or Washington, within the
applicable limitations period, paid to use inmate calling services provided
by Global Tel*Link (including its operating subsidiaries) to make or receive
one or more interstate phone calls from a correctional facility during a period
of time when Global Tel*Link paid the facility a commission of any type in
connection with the interstate calls.
The Pennsylvania UE Subclass: All persons who, while a resident of
Pennsylvania, Georgia, Florida, Idaho, Kansas, Kentucky, Maryland,
Maine, Mississippi, Missouri, New Mexico, Nevada, Oregon, South Dakota,
Virginia or Wisoncsin, within the applicable limitations period, paid to use
inmate calling services provided by Global Tel*Link (including its operating
subsidiaries) to make or receive one or more interstate phone calls from a
correctional facility during a period of time when Global Tel*Link paid the
facility a commission of any type in connection with the interstate calls.
The Texas UE Subclass: All persons who, while a resident of Texas,
Arizona, Colorado, Delaware, Illinois, Louisiana, Massachusetts, New
Jersey, North Dakota or Oklahoma, within the applicable limitations period,
paid to use inmate calling services provided by Global Tel*Link (including
its operating subsidiaries) to make or receive one or more interstate phone
calls from a correctional facility during a period of time when Global Tel*Link
paid the facility a commission of any type in connection with the interstate
calls.
See id. at ¶ 2. 4
Plaintiffs ask that Messrs. Stuart, Murilla, Chruby, and Hobbs be appointed as
representatives of the FCA Class and that each, respectively, be appointed as
representative of the Arkansas, Minnesota, Pennsylvania, and Texas UE Subclasses.

4

Although the original UE Subclass definitions proposed in Plaintiffs’ Motion each
included deposit-fee criteria identical to that in the FCA Class definition, Plaintiffs’ counsel
orally withdrew its Motion with respect to the unjust enrichment claim for deposit fees on
November 30, 2016. See Doc. 132, p. 97.
3

They also ask that the Court appoint the law firms of Kessler Topaz Meltzer & Check, LLP
(“KTMC”), Berger & Montague, P.C. (“BM”), Saltz Mongeluzzi Barrett & Bendesky P.C.
(“SMBB”), and Cohen Milstein Seller & Toll, PLLCA (“CM”) as Co-Lead Class Counsel
serving on a Co-Lead Class Counsel Committee, with KTMC serving as the Chair of such
Committee, and Amy C. Martin, Esq. 5 as Liaison Class Counsel.

And upon such

certification and appointment, they ask that this Court direct that Notice to the Class be
disseminated in accordance with a Notice program to be submitted to the Court for the
Court’s approval. The Motion has been fully briefed, and the Court heard oral argument
on it on November 30, 2016. It is now ripe for decision.
II. LEGAL STANDARD
The party seeking class certification bears the burden of proving that Rule 23’s
requirements are satisfied. See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350
(2011). The district court retains “broad discretion in determining whether to certify a
class, recognizing the essentially factual basis of the certification inquiry and . . . the
district court’s inherent power to manage and control pending litigation.” In re Zurn Pex
Plumbing Prods. Liab. Litig., 644 F.3d 604, 616 (8th Cir. 2011) (internal quotations and
citations omitted). A district court must undertake “a rigorous analysis” to ensure that the
requirements of Rule 23 are met. Gen. Tel. Co. of the Sw. v. Falcon, 467 U.S. 147, 161
(1982). “Frequently that ‘rigorous analysis’ will entail some overlap with the merits of the
plaintiff’s underlying claim.” Wal-Mart Stores, 564 U.S. at 351 (2011). The district court

5

Plaintiffs originally requested that Ms. Martin’s law firm be appointed as Liaison Class
Counsel, but she has since left that firm.
4

may “resolve disputes going to the factual setting of the case” if necessary to the class
certification analysis. Blades v. Monsanto Co., 400 F.3d 562, 567 (8th Cir. 2005).
An implicit requirement for any class certification inquiry involves a court’s
assessment as to the ascertainability of the class. The description of a proposed class
must be sufficiently definite to permit class members to be identified by objective criteria.
See Sandusky Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 996–97 (8th Cir.
2016). “The requirement that a class be clearly defined is designed primarily to help the
trial court manage the class. It is not designed to be a particularly stringent test, but
plaintiffs must at least be able to establish that the general outlines of the membership of
the class are determinable at the outset of the litigation.” Bynum v. Dist. of Columbia,
214 F.R.D. 27, 31 (D.D.C. 2003).
Under Rule 23, certifying a class action requires a two-step analysis. First, the
Court must determine whether:
•

the class is so numerous that joinder of all members is impracticable
(“numerosity”);

•

there are questions of law or fact common to the class (“commonality”);

•

the claims or defenses of the representative parties are typical of the claims or
defenses of the class (“typicality”); and

•

the representative parties will fairly and adequately protect the interests of the
class (“fair and adequate representation”).

Rule 23(a)(1)–(4). Second, the Court must determine whether:
•

questions of law or fact common to class members predominate over questions
affecting only individual members (“predominance”); and

5

•

a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy (“superiority”).

Rule 23(b)(3).
III. DISCUSSION
A. Definition and Ascertainability
The Court begins with the observation that the Eighth Circuit, “unlike most other
courts of appeals, has not outlined a . . . separate, preliminary requirement” of
ascertainability that would require plaintiffs to demonstrate a method of identifying class
members that is administratively feasible. See Sandusky Wellness, 821 F.3d at 996.
Rather, the Eighth Circuit simply adheres to a rigorous analysis of the Rule 23 factors,
and while it recognizes that this analysis necessarily entails that a class be “adequately
defined and clearly ascertainable,” the focus of this threshold inquiry is on whether the
proposed class definition identifies class members by objective criteria, rather than on the
administrative concerns that are already taken into account by the Rule 23(b)(3) factors
of predominance and superiority. See id. Thus, a proposed class of “persons who
because of their poverty are unable to pay for utility services” is not adequately defined
and clearly ascertainable, because “the vagueness of its description” makes it “impossible
to determine” who its members are. Ihrke v. N. States Power Co., 459 F.2d 566, 573 (8th
Cir. 1972), vacated due to mootness, 409 U.S. 815 (1972). But a proposed class of “[a]ll
persons who (1) on or after four years prior to the filing of this action, (2) were sent
telephone facsimile messages regarding lead testing services by or on behalf of Medtox,
and (3) which did not display a proper opt out notice” is adequately defined and clearly
ascertainable because it uses objective criteria to identify class members, regardless of

6

how administratively difficult it may be to locate those class members in practice. See
Sandusky Wellness, 821 F.3d at 996–97. Again, this does not mean administrative
burdens are irrelevant to a class certification inquiry; it just means inquiry into
administrative burdens should be shaped and guided by the Rule 23(b)(3) factors that
properly implicate them, rather than being elevated to a separate, preliminary requirement
for a heightened showing that has no basis in the text of Rule 23.
Bearing these observations in mind, it is obvious that Plaintiffs’ proposed class in
the instant case is adequately defined and clearly ascertainable. Whether a person “paid
to use inmate calling services provided by [GTL] (including its operating subsidiaries) to
make or receive one or more interstate phone calls from a correctional facility during a
period of time when [GTL] paid the facility a commission of any type in connection with
the interstate calls” is a straightforward objective test. The same is true for whether a
person “paid deposit fees to [GTL] in order to fund a prepaid account used to pay for any
interstate calls.” Neither of these definitions requires any sort of subjective valuation of
anyone’s state of mind, level of indigence, etc. in order to determine whether he or she is
a member of the proposed class.
GTL’s arguments that the definitional and ascertainability requirements are not
met, are in large part arguments that this Court should impose a heightened threshold
inquiry into administrative burdens that the Eighth Circuit has explicitly foreclosed. GTL
points out that its call detail records (“CDRs”) do not typically contain an inmate’s name,
but rather simply use a PIN, or occasionally even less, to identify the inmate. See Doc.
99, p. 18. But this is simply an issue of how many administrative steps it would take to
identify the inmate; not a problem with the criteria for identification contained in the class

7

definition. Cf. Sandusky Wellness, 821 F.3d at 997 (“The best objective indicator of the
‘recipient’ of a fax is the person who subscribes to the fax number.”). GTL also argues
that its CDRs do not contain any information about who funded the prepaid accounts,
who paid for a specific call, or whether the account-holder is who actually made a given
call on that account. See id. at 17–18. But the Court does not see what difference it
makes whether money in an account was earned through employment, donated by a
friend or loved one or complete stranger, or purchased through a prepaid calling card;
GTL has not provided this Court with any legal authority departing from the wellestablished and common-sense principle that the funds in these accounts belonged to
the owners of these accounts, regardless of whether the funds were acquired through
work, luck, purchase, or gift. Cf. In re LGI Energy Solutions, Inc., 460 B.R. 720, 729
(B.A.P. 8th Cir. 2011) (“Money deposited in a bank to be commingled with other funds
loses its identity and the depositor ceases to be the owner of the deposit, even if the
deposit is to be used for the benefit of the depositor.”). And while GTL observes that
CDRs do not indicate whether GTL actually received payment for the charges billed for a
given call, see Doc. 99, p. 18, this ignores the rather obvious rejoinder that CDRs are not
the only records GTL keeps, and that payment information is readily accessible elsewhere
in GTL’s records. See, e.g., Doc. 93-5, p. 311 (internal GTL training document describing
system of tracking individual customers’ account balances by “[t]he total value of all calls
since the last billed date . . . minus any payment amounts dated after the last invoice”).
GTL also argues that the proposed class is not ascertainable because GTL’s
Account Transaction Reports (“ATRs”) do not identify whether any particular deposit fee
for a prepaid account was attributable to interstate or intrastate calls made on that

8

account. See Doc. 99, p. 18. But this misses the point. The pertinent objective criteria
in the class definition here is whether the prepaid account in question was used to pay
for “any” interstate calls. GTL’s ATRs identify whether deposit fees were paid on a given
account, see, e.g., Doc. 93-4, pp. 2050, 2093, and GTL’s CDRs identify whether interstate
calls were made on that account, see, e.g., Doc. 93-4, pp. 161–62. The class definition
here does not require one to analyze what percentage of the account’s calls were
interstate, much less to analyze what percentage of the deposit fees charged to that
account were economically attributable to said interstate calls, in order to determine
whether a person who paid deposit fees to fund that account is a class member. One
needs simply to determine whether any interstate calls were made on that account,
period. This is a simple, objective, well-defined, and easily ascertainable criterion.
There is, however, one problem with the four proposed UE Subclass definitions
that was not briefed but that should nevertheless be addressed here. Each of those
definitions uses the words “while a resident of” to describe the relationship between its
class members and the states where those class members allegedly suffered the wrongs
they are seeking to remedy. The Court believes this language could lead to unnecessary
confusion, because some states have laws that explicitly preclude individuals from
acquiring residency solely by reason of being incarcerated there. See, e.g., Tenn. Code
Ann. § 2-2-122(a)(7) (“A person does not gain or lose residence solely by reason of the
person’s presence or absence . . . while kept in an institution at public expense, or while
confined in a public prison[.]”). However, this problem is easily remedied by simply
substituting the word “in” for the words “a resident of” in each of the four UE Subclass
definitions. With that caveat, Plaintiffs’ proposed class is adequately defined and clearly

9

ascertainable. Therefore, the Court will proceed to consider the four Rule 23(a) factors
of numerosity, commonality, typicality, and fair and adequate representation. 6
B. Numerosity, Commonality, Typicality, and Fair and Adequate Representation
The proposed class in this case is indisputably numerous, likely containing at least
a hundred-thousand individuals, and quite possibly many more. GTL has conceded the
issue of numerosity “for all practical purposes.” (Doc. 132, p. 126). Its sole caveat on
this point is that this Court previously observed in another case that “[f]actual disputes as
to standing and ascertainability of the class call into question the class’s numerosity.”
Littleton v. State Farm Mut. Auto. Inc. Co., 2015 WL 128577, at *8 (W.D. Ark. Jan. 8,
2015). For the reasons given in the preceding subsection, the Court does not believe
such concerns are present here to any significant degree.
Likewise, there are questions of law or fact common to the class. Plaintiffs allege
that GTL recoups the site commissions it pays incarceration facilities through the rates it
charges users of its inmate calling services, that GTL charges fees for depositing funds
in inmate prepaid accounts that grossly exceed the cost of processing those deposits,
and that these practices are the result of nationwide policies rather than of ad hoc
negotiations with individual consumers of GTL’s services. Plaintiffs further contend that
these practices are unjust, unreasonable, and inequitable under both the FCA and the
common law of unjust enrichment. These factual allegations and legal arguments do not
depend in any way on the individual circumstances surrounding individual payments by

6

GTL also argued, as a threshold matter, that Plaintiffs have no representative for the
proposed “deposit fee” class. (Doc. 99, p. 19). That argument has subsequently been
mooted by this Court’s granting of Mr. Hobbs’s motion to intervene. See Doc. 125, pp.
6–9.
10

class members; they are contentions that are common to the class as a whole. And for
each of these contentions, “determination of its truth or falsity will resolve an issue that is
central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, 564 U.S.
at 350.
It is instructive to contrast the claims in this case with those in Luiken v. Domino’s
Pizza, LLC, 705 F.3d 370 (8th Cir. 2013). In Luiken, the district court had certified a class
of individuals employed as delivery drivers for Domino’s Pizza, who sought to recover
fixed delivery charges paid by customers to Domino’s which the class members
contended were “gratuities” that had been wrongfully withheld from them under Minnesota
statutory and administrative law. See 705 F.3d at 372–73. The Eighth Circuit reversed,
holding that commonality and predominance were not satisfied, because under the plain
language of the statutory definition at issue, whether a monetary contribution was a
“gratuity” depended on the factual context under which a given contribution was made—
and in particular, on whether a “reasonable” person making a contribution would construe
that contribution as being made “for personal services,” given the factual context in which
it was paid. See id. But in the instant case, a class member’s uniquely individual
circumstances are utterly irrelevant to the questions of whether it is just or reasonable for
GTL to recoup site commissions from customers of inmate calling services, or whether it
is just or reasonable for GTL to charge deposit fees that exceed processing costs by x, y,
or z amounts. Under Plaintiffs’ theory of the case, the class rises or falls together. If
Plaintiffs ultimately prevail, then individual class members will certainly recover different
amounts in accordance with how much they have paid to GTL; but this is no different from
countless other properly certified class actions. It would simply be a matter of using the

11

same records to determine the amount one may recover, as were used to determine
whether one is a class member in the first place.
GTL counters that Plaintiffs’ “one-size-fits-all theory” is untenable as a matter of
law, see Doc. 99, pp. 21–24, because “we have had no pronouncement” from the Federal
Communications Commission (“FCC”) or any other legal authority “that site commissions
are, per se, illegal,” see Doc. 132, p. 91. But on the other hand, this Court is also unaware
of any pronouncement that they are not, at least with respect to their recoupment from
customers. More to the point, GTL has not provided this Court with any statutory or
regulatory language that definitively forecloses, or even comes close to definitively
foreclosing, Plaintiffs’ theory of liability.

And while the Court appreciates that class

certification analysis frequently “entail[s] some overlap with the merits of the plaintiff’s
underlying claim,” Wal-Mart Stores, 564 U.S. at 351, that does not mean it would be
appropriate for this Court to use an order on a class certification motion as a vehicle to
essentially grant summary judgment, on the basis of a woefully incomplete record for that
purpose, against a theory of liability that is not obviously foreclosed as a matter of law,
and under a legal standard where the burden rests on Plaintiffs rather than on the party
who is essentially seeking summary judgment. Simply put, Plaintiffs contend that certain
of GTL’s business practices are per se unjust and unreasonable, and GTL disagrees.
This disagreement is undoubtedly an interesting and intellectually stimulating one, and it
may prove very difficult to resolve—but the Court is well persuaded that the core
questions it poses are common to all of the class members. If at some point down the
line that disagreement is resolved in GTL’s favor, perhaps at the close of merits discovery,

12

or even at trial, then such an occasion would be an opportune moment for GTL to move
for decertification; but that is not where we are right now. 7
Turning to the third factor under Rule 23(a): Plaintiffs’ claims are quite clearly
typical of the proposed class’s claims, because all proposed class members’ claims,
including Plaintiffs’, “are based on the same legal or remedial theory,” Paxton v. Union
Nat. Bank, 688 F.2d 552, 561–62 (8th Cir. 1982), which is that GTL violated the FCA and
the common law of unjust enrichment by charging them exorbitant rates and deposit fees
for interstate phone calls. GTL disagrees with regard to Mr. Stuart, arguing that his claims
are subject to a unique defense because he used prepaid calling cards that he did not
pay for himself. The Court has already explained in the preceding subsection why it does
not find this argument persuasive. GTL also argues, more generally, that the Plaintiffs’
claims are not typical because one cannot determine whether any particular rate or fee
was unreasonable without performing individualized analyses of the circumstances under
which it was charged and paid. (Doc. 132, p. 124). The Court has already disposed of
this argument in the immediately preceding paragraphs on commonality, and does not
believe it presents any new issues within the context of typicality. 8

7

The Court views GTL’s separate argument that “Plaintiffs have failed [to] show that
damages can be assessed on a class basis,” see Doc. 99, pp. 26–27, as essentially being
a reformulation of GTL’s contention that Plaintiffs’ theory of the case is not legally tenable,
and the Court rejects this argument for the same reasons as recited above in the body of
this Opinion.

8

GTL also argued that Mr. Murilla is subject to the unique defense that he did not make
any interstate calls from 2010 to 2012, but that argument was subsequently mooted by:
(1) the parties’ stipulation that the class periods for the FCA and unjust enrichment claims
begin on April 24, 2012, and April 24, 2011, respectively, see Doc. 108, p. 2, and (2) this
Court’s Order finding that a material dispute of fact exists as to whether Mr. Murilla made
and paid for an interstate call in 2013, see Doc. 125, pp. 5–6.
13

As for the fourth factor under Rule 23(a), the Court is also easily persuaded that
Plaintiffs will fairly and adequately represent the interests of the class. Plaintiffs’ interests
are aligned with those of the class members, they have vigorously prosecuted their own
interests through qualified counsel9 up through the present moment in this litigation, and
the Court sees no reason to believe this vigorous prosecution will abate following class
certification. See Paxton, 688 F.2d at 562–63. GTL attacks the adequacy of Mr. Stuart’s
representation by characterizing his deposition testimony as saying that “he’s not sure
why he’s in this case.” See Doc. 132, p. 123. But this Court believes a fairer interpretation
of Mr. Stuart’s testimony is simply that he did not understand the more complex nuances
of the legal arguments at play. See, e.g., Doc. 106-8, pp. 23–24. Fine; that is what his
lawyers are for. Finally, although GTL makes a fleeting challenge to Mr. Chruby’s honesty
and integrity, arguing that he “may be disqualified based on false statements made in
prison disciplinary proceedings,” GTL offers no evidence to support this claim, and
essentially abandoned it during oral argument on November 30, 2016. See Doc. 132, p.
124.
In conclusion, then, the Court finds that all four Rule 23(a) factors of numerosity,
commonality, typicality, and fair and adequate representation weigh in favor of class
certification here.

Accordingly, the Court will proceed to the second step of class

certification analysis, and consider the Rule 23(b)(3) factors of predominance and
superiority.

9

Lead counsel for Plaintiffs has extensive experience and success prosecuting class
action cases, and GTL does not challenge or dispute the qualifications of Plaintiffs’
counsel.
14

C. Predominance and Superiority
“The Rule 23(b) predominance inquiry tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation.” Amchem Prods., Inc. v.
Windsor, 521 U.S. 591, 623 (1997). The Eighth Circuit has explained that:
When determining whether common questions predominate, a court must
conduct a limited preliminary inquiry, looking behind the pleadings, but that
inquiry should be limited to determining whether, if the plaintiffs’ general
allegations are true, common evidence could suffice to make out a prima
facie case for the class. While limited in scope, this analysis should also be
rigorous.
In re Zurn Pex Plumbing Prod. Liab. Litig., 644 F.3d 604, 618 (8th Cir. 2011) (emphasis
added) (internal citations and quotation marks omitted). The Court believes common
evidence could suffice to make out a prima facie case that, as described in the preceding
subsection of this Order, GTL recoups the site commissions it pays incarceration facilities
through the rates it charges users of its inmate calling services, charges fees for
depositing funds in inmate prepaid accounts that grossly exceed the cost of processing
those deposits, engages in these practices pursuant to nationwide policies, and that these
practices are unjust and unreasonable.
GTL protests that the reasonableness of their interstate rates and deposit fees
raises individualized fact issues, such as the size of different facilities, the mix of call traffic
at different facilities, call recording and monitoring features at different facilities, and so
forth. See Doc. 99, pp. 24–26. But this argument misapprehends Plaintiffs’ theory of the
case. Plaintiffs are not contending that it is unjust or unreasonable for GTL to recoup any
of those particular costs; they are contending it is unjust and unreasonable for GTL to
recoup site commissions, and to charge deposit fees that far exceed the cost of
processing deposits on prepaid accounts.
15

Specifically with regard to deposit fees, GTL argues that “[t]he amount of the fee
and the circumstances under which a customer chooses to pay are individualized issues”
that would prevent common proof from predominating. See Doc. 99, p. 26. But Plaintiffs
are seeking class certification for their deposit-fee claims only under the FCA—not under
the common law of unjust enrichment. While it is true that under Arkansas common law,
“payments which are voluntarily made cannot be recovered except for payments made
as a result of duress, fraud, mistake or failure of consideration,” the Court is unaware of
any authority holding that this “voluntary payment” defense is available against claims for
damages brought under the FCA’s prohibition of unjust and unreasonable rates and
practices under 47 U.S.C. §§ 201, 206. And while the amount of deposit fees may vary
from one individual to another, the Court has not been presented with any evidence thus
far that the cost of processing deposits varies from one individual to another; given
Plaintiffs’ theory of the case, the latter issue easily predominates over the former.
In a similar vein, GTL contends that the voluntary payment doctrine and the statelaw defense of derivative sovereign immunity raise individualized fact issues with respect
to class members’ claims that recoupment of site commissions violates the common law
of unjust enrichment. See Doc. 99, pp. 30–31. The Court disagrees, at least on the basis
of the record currently before it. There is no evidence in the record that any class
members who wished to use inmate calling services had the option of not paying
recoupments of site commissions to GTL; thus, whether these rates were “voluntary” or
the “result of duress” under such conditions is a question that is common among all class
members. Similarly, there is not presently any evidence in the record that GTL’s provision
of inmate calling services to any class members was performed “under the . . . direct

16

supervision” of any governmental agency, which is a necessary element of derivative
sovereign immunity. See Lopez v. Mendez, 432 F.3d 829, 833 (8th Cir. 2005).
Relatedly, GTL points out that in approximately July 2013, it “added a mandatory
arbitration and class action waiver provision to the Terms of Use . . . that govern prepaid
calling accounts,” and argues that individualized analysis will be necessary to determine
whether any given class member is bound by these terms. See Doc. 99, p. 29. The Court
believes that for purposes of predominance this issue presents a much closer question
than the aforementioned defenses of voluntary payment and sovereign immunity, given
that it is indisputably the case that there are many class members whose claims arise
from activity occurring after the mandatory arbitration and class action waiver provision
was put into place. However, the Court would also note that there is currently pending a
motion by GTL to compel Mr. Hobbs to arbitrate his claims pursuant to such a provision,
see Doc. 133, and that this motion is not yet ripe. The Court believes it is likely that the
briefing on this motion, and the Court’s ultimate decision on it, will shed much-needed
light on the factual and legal context for this issue as it relates to predominance. Given
how heavily all of the other Rule 23 factors presently weigh in favor of class certification,
and given that certification of a class at this stage is inherently conditional and subject to
decertification should circumstances warrant it, the Court believes the most prudent use
of judicial resources would be to defer decision on the issue of the waiver’s implications
for predominance to a later time in these proceedings, for example through a motion for
decertification. See Hervey v. City of Little Rock, 787 F.2d 1223, 1227 (8th Cir. 1986)
(“The court’s duty to assure compliance with Rule 23(a) continues even after certification

17

. . . .”); Fed. R. Civ. P. 23(c)(1)(C) (“An order that grants or denies class certification may
be altered or amended before final judgment.”).
Finally, GTL argues that variations from state to state in the elements of unjust
enrichment defeat predominance.

See Doc. 99, pp. 28–29.

The Court disagrees,

because the critical issue here for purposes of predominance is not whether the elements
vary, but rather whether common evidence can be used to satisfy them in a prima facie
case. Here, common evidence can suffice, because none of the variances in elements
that GTL has pointed to requires individualized inquiry into the unique circumstances of
particular class members. See generally Doc. 106-14 (chart prepared by GTL surveying
differences among states’ unjust-enrichment elements).

No matter which state’s

elements are used, the pertinent facts as alleged by Plaintiffs, and the evidence they
intend to offer, are the same for every putative class member: that GTL exploited its
exclusive contracts for provision of inmate calling services at correctional facilities by
recouping from its customers the site commissions it paid those facilities, or by charging
its customers deposit fees on prepaid accounts that were far in excess of the actual cost
for processing those deposits. The Court recognizes that there are many conceivable
circumstances where the allegations underlying a putative class action could be such that
variances among different states’ unjust-enrichment elements would be material. But that
does not appear to be the situation in this case.
Neither of the two specific elemental variances that GTL highlights in its Brief is
availing. One such variance is that it appears Michigan’s law of unjust enrichment might
require a plaintiff to have directly conferred a benefit on a defendant that was unjustly

18

retained, while other states in its subclass permit indirect conferral. 10 GTL contends that
this requirement of direct conferral matters because “Plaintiffs’ proposed class includes
inmates who purchased prepaid calling cards from a correctional facility, not GTL.” (Doc.
99, p. 29). But as the Court discussed is Section III.A, supra, the funds on a prepaid card
belong to the inmate who owns the card, regardless of how they got there. And Plaintiffs
are not seeking to recover the money they paid to the correctional facility in exchange for
the right to own the funds on the prepaid calling cards; they are seeking to recover money
they paid directly to GTL from the funds that were on their prepaid calling cards when
they used those cards to purchase minutes from GTL. And although GTL characterizes
New Hampshire unjust-enrichment law as “consider[ing] the wrongfulness of [a]
defendant’s conduct” while other states in its subclass do not, there is actually no material
difference here; New Hampshire permits recovery of unjust enrichment in the absence of
wrongful acts where there is “passive acceptance of a benefit that would be
unconscionable to retain.” See Kowalski v. Cedars of Portsmouth Condominium Ass’n,
769 A.2d 344, 347 (N.H. 2001).
Ultimately, under the facts of the instant case, variations in unjust enrichment laws
from state to state bear much less on the issue of predominance than on the final Rule
23(b)(3) factor—whether a class action is superior to other available methods for fairly

10

So far this Court has only found unpublished decisions explicitly holding thus, and even
many of those decisions seem equivocal on whether the requirement of direct conferral
is true black-letter law, or is rather simply a result that typically flows from Michigan’s
requirement that the doctrine of unjust enrichment should be employed “with caution.”
See, e.g., Smith v. Glenmark Generics, Inc., USA, 2014 WL 4087968, at *1 (Mich. Ct.
App. Aug. 19, 2014) (collecting cases) (“Notably, caselaw does not specifically state that
the benefit must be received directly from the plaintiff, but these decisions make it clear
that it must.” (emphasis in original)).
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and efficiently adjudicating the controversy. And as with predominance, the Court finds
that this factor weighs in favor of class certification. Given the common evidence that will
be used at trial, whatever variances may exist within a particular subclass among different
states’ elements for unjust enrichment can be adequately addressed through the use of
special verdict forms. Although the verdict forms and accompanying jury instructions in
this case might be a little more complicated in this regard than what would be used in
separate cases prosecuted on a state-by-state basis, the Court is confident, at least for
now, that it is capable of managing this task without confusing the jury, and that the
efficiencies realized by consolidating all of these claims into one forum far outstrip the
difficulties.
If a class action is not certified, the only other means of which the Court is aware
by which class members may prosecute their claims are either to bring individual lawsuits
or to lodge individual administrative complaints with the FCC under 47 U.S.C. § 208. The
former alternative is plainly impractical given the low amount of damages suffered by the
typical individual class member relative to the prohibitive cost of bringing a lawsuit. And
the latter alternative is plainly inferior to a class action, in light of “the class members’
interests in individually controlling the prosecution or defense of separate actions,” and
“the desirability or undesirability of concentrating the litigation of the claims in [this]
particular forum.” Fed. R. Civ. P. 23(b)(3)(A). Although an administrative proceeding
under § 208 may be a far less expensive affair for a claimant than an individual lawsuit
would be, it would also be a very rushed affair, see § 208(b)(1), in which none of the
parties would have the opportunity to conduct the sort of thorough discovery and vigorous
prosecution of their respective positions that can be undertaken in this Court. Finally, the

20

Court is unaware of any other lawsuits already begun against GTL with claims
overlapping those brought by the class members in this case. See Fed. R. Civ. P.
23(b)(3)(B); Doc. 93-2, ¶ 51; Doc. 92, ¶¶ 1–2.
IV. CONCLUSION
IT IS THEREFORE ORDERED that Plaintiffs Kaylan Stuart’s, Dustin Murilla’s,
Walter Chruby’s, and Rocky Hobbs’s Motion for Class Certification, Appointment of Class
Representatives and Appointment of Class Counsel (Doc. 92) is GRANTED as follows:
IT IS ORDERED that named Plaintiffs Kaylan Stuart, Dustin Murilla, Walter
Chruby, and Rocky Hobbs are appointed as representatives of the following class, the
“FCA Class,” which is certified to pursue a common claim under the FCA:
All persons in the United States 11 who, at any time within the applicable
limitations period: (1) paid to use inmate calling services provided by Global
Tel*Link (including its operating subsidiaries) to make or receive one or
more interstate phone calls from a correctional facility during a period of
time when Global Tel*Link paid the facility12 a commission of any type in
connection with the interstate calls; and/or (2) paid deposit fees to Global
Tel*Link in order to fund a prepaid account used to pay for any interstate
calls.

11

Excluded from the proposed Class are any persons who paid to use Global Tel*Link’s
inmate calling services in order to make or receive telephone calls from a correctional
facility in New Jersey.
12

GTL often contracts with correctional agencies, such as a state’s Department of
Corrections, that oversee multiple correctional facilities. For purposes of this Motion, and
consistent with industry practices, the term “facilities” or “facility” refers to the correctional
facilities as well as the corresponding correctional agency overseeing the correctional
facilities.
21

IT IS FURTHER ORDERED that the following subclasses (the “UE Subclasses”)
are certified to pursue claims for unjust enrichment under the laws of the specified states,
with the referenced Plaintiff appointed as the representative of such subclass: 13
The Arkansas UE Subclass (Kaylan Stuart): All persons who, while in
Arkansas, California, Connecticut, Hawaii, Indiana, Iowa, Michigan,
Nebraska, New Hampshire, South Carolina, Vermont or West Virginia,
within the applicable limitations period, paid to use inmate calling services
provided by Global Tel*Link (including its operating subsidiaries) to make or
receive one or more interstate phone calls from a correctional facility during
a period of time when Global Tel*Link paid the facility a commission of any
type in connection with the interstate calls.
The Minnesota UE Subclass (Dustin Murilla): All persons who, while in
Minnesota, Alaska, Ohio, Tennessee, Utah or Washington, within the
applicable limitations period, paid to use inmate calling services provided
by Global Tel*Link (including its operating subsidiaries) to make or receive
one or more interstate phone calls from a correctional facility during a period
of time when Global Tel*Link paid the facility a commission of any type in
connection with the interstate calls.
The Pennsylvania UE Subclass (Walter Chruby): All persons who, while
in Pennsylvania, Georgia, Florida, Idaho, Kansas, Kentucky, Maryland,
Maine, Mississippi, Missouri, New Mexico, Nevada, Oregon, South Dakota,
Virginia or Wisoncsin, within the applicable limitations period, paid to use
inmate calling services provided by Global Tel*Link (including its operating
subsidiaries) to make or receive one or more interstate phone calls from a
correctional facility during a period of time when Global Tel*Link paid the
facility a commission of any type in connection with the interstate calls.
The Texas UE Subclass (Rocky Hobbs): All persons who, while in Texas,
Arizona, Colorado, Delaware, Illinois, Louisiana, Massachusetts, New
Jersey, North Dakota or Oklahoma, within the applicable limitations period,
paid to use inmate calling services provided by Global Tel*Link (including
its operating subsidiaries) to make or receive one or more interstate phone
calls from a correctional facility during a period of time when Global Tel*Link
paid the facility a commission of any type in connection with the interstate
calls.

13

Excluded from the UE Subclasses are any persons who paid to use Global Tel*Link’s
inmate calling services in order to make or receive telephone calls from a correctional
facility in New Jersey.
22

IT IS FURTHER ORDERED that the law firms of Kessler Topaz Meltzer & Check,
LLP (“KTMC”), Berger & Montague, P.C. (“BM”), Saltz Mongeluzzi Barrett & Bendesky
P.C. (“SMBB”), and Cohen Milstein Seller & Toll, PLLCA (“CM”) are appointed as CoLead Class Counsel serving on a Co-Lead Class Counsel Committee, with KTMC serving
as the Chair of such Committee. Amy C. Martin, Esq. is appointed as Liaison Class
Counsel.
IT IS FURTHER ORDERED that Notice to the Class, in a form approved by the
Court, shall be disseminated in accordance with a Notice program to be approved by the
Court following consideration of the parties’ proposal(s) for the form and manner of
Notice, which proposal(s) shall be submitted to the Court within fourteen (14) days of the
date of this Order.
IT IS SO ORDERED on this 3rd day of February, 2017.

_/s/ Timothy L. Brooks______________
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE

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