Prison Phone Justice

Page 1 of 1

?lacier

Matilda Sanders

--

,

,

--

- - -

From:

Angela Blankenship [ABlankenship@aws-law.com]

Sent:
To :

Wednesday, March 28,2007 3:30 PM

cc:
Subject:

Kira Scott; fself@lawfla.com; Vicki Gordon Kaufman; Doug Kreis; Jason Richards; Justin Witkin

Filings@psc.state.fl.us
Docket No. 060614-TC

Attachments: Petition to inspect 2007-03-28.pdf

The person responsible for this filing is:
Douglass A. Kreis, Esq.
Aylstock, Witkin & Sasser, PLC
4400 Bayou Blvd., Suite 58
Pensacola, FL 32503
(850) 916-7450 Phone
dkreis@aws-1aw.com
Docket No. 0606 14-TC-Compliance investigation of TCG Public Communications,Inc. for apparent violation
of Section 364.183( l), F.S., Access to Company Records, and determination of amount and appropriate method
of refunding overcharges for collect calls made from inmate pay telephones.
This is being filed on behalf of Kirsten Salb.

CMP

-

Total number of pages is 27.
Kirsten Salb's Petition and Memorandum to Inspect and Examine Confidential Material.

Angela Blankenship, CLA
Certified Paralegal
Aylstock, Witkin & Sasser, PLC
4400 Bayou Blvd., Suite 58
Pensacola, FL 32503
(850) 916-7450 Phone
(850) 916-7449 Facsimile
(877) 810-4808 Toll Free
w.aws-law.com
This Electronic Mail contains PRIVILEGED AND CONFIDENTIAL INFORMATION intended only for the use of the addressee(s) named above If you are not the
o
intended recipient of this E-mail, or the employee or agent responsible for delivering it t the intended recipient, YOU ARE HEREBY NOTIFIED that any
dissemination or copying of this material is strictly prohibited If you have received this E-mail in error, please immediately notify us and destroy the original
material

3/29/2007

dyfstock) Witkin Sasser, PLC
Consumer justice Attorneys

. SMITH IFL,VA, DC,MS)

4400 Bayou Boulevard, Suite 58 * Rnsacola, Florida 32503-26n
Phone: (850) 916-7450 *Fax: 916-7449 .TdI b C t (677) 8%-4808
(850)

Doucuss A. KRETS(FL)
NEIL D. OVERXOLTZ
(t"t)

R. ]ASON RICHARDS fFL, GO)
JOSHUAA. jONES EL)
f NY, NII
~

RUSSELL H, REIN f

W.AWS-T.AW.COM

March 28,2007
SENT VIA ELECTRONIC MAIL

Ms. Blanco Bay6, Director
Commission Clerk and Administrative Services
Room 110, Easley Building
Florida Public Service Commission
2540 Shumard Oak Blvd.
Tallahassee, FL 32399-0850
Filinm@,psc.state.fl.us
Re: Docket No. 060614-TC
Dear Ms. Bay6:
Please find attached for filing an electronic version of Kirsten Salb's Petition and
Memorandum to Inspect and Examine Confidential Material.
Thank you for your assistance with this filing.
Sincerely,

Douglas A. Kreis
DAWamb
Attachment
Cc: Parties of Record

Post Office Box 1147
Gulf Breeze, Ftorida 32562-1147

Phone: (850)916-7450

2499 Glades Road, Suite 107

I855 Lakeland Drive, Suite Q-230

Boca Raton, Florida 13431
Phone: (561) 347-1318

lackson,Mississippi 39216
Phone: (877) 810-4808

BEFORE THE FLORIDA PUBLIC SERVICE COMMISSION
In re: Compliance investigation of TCG Public
Communications, Inc. for apparent violation of
Section 364.183( l), F.S., Access to Company
Records, and determination of amount and
Appropriate method for refunding overcharges
For collect calls made from inmate pay telephones.

)
)
)
)
)
)

Docket No. 0606 14-TC
Filed: March 23,2007

PETITION AND MEMORANDUM TO INSPECT
AND EXAMINE CONFIDENTIAL MATERIAL
In accordance with Section 25-22.006(5)(~)2 the Florida Administrat, /e COGJ,’
of
Kirsten Salb (“Petitioner” and/or “Kirsten Salb”) requests that the Florida Public Service
Commission (“Commission”) make available to her and/or her counsel all material, documents
and information, claimed to be confidential or otherwise, filed with the Commission in this
administrative matter for inspection, examination and copying. In support of this request,
Petitioner states the following:
BACKGROUND
Salb v. Evercom Systems, Inc., Correctional Billing Services and T-Netix, Inc. (S.D.
Fla. 2006) Case No.: 06-20290
On February 2,2006, Petitioner, Kirsten Salb, on behalf of herself and others similarly
situated filed a class action complaint against Evercom Systems, Inc. (“Evercom”) and
Correctional Billing Services (“CBS”) seeking compensation for their unfair practices of
wrongfully disconnecting calls made by Petitioner and other Florida residents. The relief sought
by Petitioner includes damages, injunctive relief, pre-judgment interest, and reasonable attorney’s
fees and costs. On or about on September 25,2006, that complaint was amended naming the

’

Section 25-22.006(5)(~)2
provides: “Any person may file a petition to inspect and examine any material which has
been claimed confidential pursuant to Section 364.1 83( I), Florida Statutes. A copy of the petition must be served on
the affected telecommunications company or person which shall have 10 days to file a response as to why the
material should remain exempt. The petitioner shall have 7 days to file a reply to the filed response. The
Commission may set the matter for hearing or issue a ruling on the pleadings.”

I

additional Defendant, T-Netix, Inc. (“T-Netix”). See Amended Class Action Compl. attached
hereto as Exhibit “A.” T-Netix and Evercom are affiliate companies operating under the same
corporate umbrella. T-Netix and Evercom are wholly owned subsidiaries of Securus
Technologies, Inc. and share control of CBS. In the underlying civil action, the parties have
participated in discovery and Defendants Evercom, CBS and T-Netix have produced
documentation. Prior to filing this Petition to Inspect and Examine Confidential Material, the
undersigned conferred with counsel for Evercom, CBS and T-Netix who indicated that they
believed all information provided to the Florida Public Service Commission was likewise
provided to Petitioner in the underlying civil matter and did not oppose our request. However,
counsel indicated that such consent could not be provided as to Respondent TCG.
Florida Public Service Commission
During the pendency of Petitioner’s civil suit against Evercom, CBS and T-Netix, the
Florida Public Service Commission (“FPSC”) began its own investigation into the billing
practices of TCG Public Communication, Inc. (“TCG”) which gave rise to the underlying
administrative case. At all relevant times, TCG had a contractual relationship with T-Netix and
Evercom whereby T-Netix and Evercom are subcontractors to TCG for relevant the Miami-Dade
contract (hereinafter Evercom, T-Netix, CBS and TCG are referred to herein collectively as
“Respondents”).
Specifically, on or about on September 12,2006, in FPSC’s own investigation, FPSC’s
Competitive Markets and Enforcement Staff sent a “Request to Establish Docket” to the
Commission Clerk. In the space for the suggested Docket Title, FPSC Staff proposed
“Compliance investigation of TCG Public Communications, Inc. for apparent violation of
Section 364.183(1), F.S., Access to Company Records, and determination of amount and

2

appropriate method of refunding overcharges for collect calls made from inmate pay
telephones.”2 The Commission Clerk subsequently assigned this Request Docket No. 0606 14TC and titled the docket as proposed by the FPSC Staff.
On or about September 22,2006, the Commission Staff issued a Subpoena Duces
Tecum Without Deposition on TCG. Subsequently, on or about on October 25,2006 and
February 6,2007, Commission Staff issued a Subpoena Duces Tecum
Without Deposition to Evercom in furtherance of its investigation. However, rather than fully
disclose information or produce requested documentation available for public view, Respondents
responded on grounds that their responses were “confidential”. Moreover, Respondents redacted
responses and prevented said documents from being available for public view. Petitioner now
files this petition and memorandum to inspect, examine and copy all material, documents and
information, claimed to be confidential or otherwise, filed with the Commission in this
administrative matter for inspection, examination and copying.
Though counsel for Evercom, CBS and T-Netix with whom the undersigned conferred
indicated that they believed all information provided to the Florida Public Service Commission
was likewise provided to Petitioner in the underlying civil matter, Petitioner believes that
information and documents were provided to the FPSC which may not have been produced to
Petitioner. As to documentation and information relating to these parties or entities, Petitioner
simply seeks to confirm the completeness of discovery from said entities and such parties
representation as to production. However, additionally, because any and all documentation

~

* The subject matter of this proceeding is pay telephone service provided to inmates at the Miami-Dade County
Correctional Department facilities pursuant to a contract between TCG and Miami-Dade County and customer
complaints associated with such service for the time period of approximately September 2003 through September
2005.

Respondent TCG has produced to the FPSC would not have been produced in the underlying
civil action, Petitioner seeks to inspect, examine and copy the same as well.

ARGUMENT
Florida recognizes a presumption that where documents are submitted to a governmental
agency, such as the records submitted by the Respondents here to the FPSC, those records are
public. In Re: BellSouth Telecommunications, Inc., No. WL50.5685, slip op. at 1 (Fla. P.S.C.
Jan. 26,2007). The purpose of this presumption is “based on the concept that government
should operate in the ‘sunshine3.”’ Id. Thus, because Respondents have submitted documents to
the FPSC, a governmental agency, those records are presumed public and, unless a statutory
exception exists, the FPSC “shall permit the record to be inspected and copied by any person
desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by
the custodian of the public records.” Fla. Stat. Ann. tj 119.07( l)(a).
Respondents have uniformly responded to FPSC’s subpoena(s) by asserting that all of its
responses were and are confidential in accordance with Fla. Stat. Ann. tj 364.183(3), not subject
to public disclosure under Fla. Stat. Ann. tj 119.07, and redacted its responses. However,

Fla. Stat. Ann.
part:

8 286.01 1 (West 2007), commonly referred to as Florida’s

Sunshine Law, provides, in pertinent

(1) All meetings of any board or commission of any state agency or authority or of any agency or authority of any
county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which
official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution,
rule, or formal action shall be considered binding except as taken or made at such meeting. The board or
commission must provide reasonable notice of all such meetings.
(2) The minutes of a meeting of any such board or commission of any such state agency or authority shall be
promptly recorded, and such records shall be open to public inspection.
The purpose behind Florida’s Sunshine Law is to “protect the public from ‘closed door’ politics and, as such, the
law must be broadly construed to effect its remedial and protective purpose.” Wood v. Marston, 442 So.2d 934,
938 (Fla.,1983) (citing Canney v. Board of Public Instruction, 278 So.2d 260 (Fla.1973); Board of Public
Instruction v. Doran, 224 So.2d 693 (Fla.1969)).

4

Respondents asserted the confidentiality exception where it is clear none existed. Fla. Stat.
Ann. provides factors the FPSC ought to consider in determining if such an exception exists:
(3) The term “proprietary confidential business information” means information,
regardless of form or characteristics, which is owned or controlled by the person or
company, is intended to be and is treated by the person or company as private in that the
disclosure of the information would cause harm to the ratepayers or the person’s or
company’s business operations, and has not been disclosed unless disclosed pursuant to a
statutory provision, an order of a court or administrative body, or private agreement that
provides that the information will not be released to the public. The term includes, but is
not limited to:
(a) Trade secrets.
(b) Internal auditing controls and reports of internal auditors.
(c) Security measures, systems, or procedures.
(d) Information concerning bids or other contractual data, the disclosure of which would
impair the efforts of the company or its affiliates to contract for goods or services on
favorable terms.
(e) Information relating to competitive interests, the disclosure of which would impair the
competitive business of the provider of information.
(f) Employee personnel information unrelated to compensation, duties, qualifications, or
responsibilities.

Fla. Stat. Ann.

0 364.1 83(3).

A quick analysis of Respondents’ responses is illustrative of their misplaced contention
as to a classification of confidentiality relating to the documents and information sought by the
FPSC:
Requests for Production and Interrogatories dated September 22,2006
On September 22,2006, the FPSC served Requests for Production and Interrogatories
upon TCG seeking information including: telephone equipment sensitivity settings; changes to
As to Respondents’ contention that the documents they have produced in response to request for production issued
by the FPSC are “confidential”,a review of the docket and documents filed within the underlying matter reveals
only that said documents were unilaterally designated as “confidential” and that no formal determination has been
made regarding their classification.

5

such settings; contracts between TCG and Evercom; and quantity of particular terminated calls.
In response thereto, TCG filed a motion to quash or limit the discovery. Additionally, TCG
sought a protective order relating to Respondent Evercom’s disclosure of documents and
information in response to a subpoena issued on Evercom by the FPSC on the same date. In its
response and opposition, TCG attempted to invoke the confidentiality provisions provided by
Florida Statute

0 364.183 and refused to respond fully to the FPSC’s requests. The type of

information sought does not meet the statutory definition of “proprietary confidential business
information” contemplated by statute.
Subpoena dated October 25,2006 to Evercom’
On October 25,2006, the FPSC served a subpoena on Evercom directing it to provide the
following information for the time period January 1999 and ending August 31,2006:
1.
2.

3.
4.

Any and all requests and correspondence regarding telephone equipment
sensitivity setting for the correctional facilities served by TCG in the state of
Florida.
Any records of modifications and changes to sensitivity levels for the telephone
equipment for the correctional facilities served by TCG in the state Florida.
Complete copies of any and all contracts between TCG and Evercom d/b/a
Correctional Billing Services governing work performed for TCG by Evercom
d/b/a Correctional Billing Services.
Please provide the information below for calls that terminated and another call
was completed to the same telephone number with in 10 minutes for
correctional facilities, identified by month and location, served by TCG in the
state of Florida.
a. LOCAL - Number of calls
b. Intrastate - Number of calls and minutes

By submission dated December 4,2006, Evercom responded to these requests by filing a
redacted exhibit list. Presumably, Evercom in fact served responsive documents upon the FPSC,
however, all that is reflected in the public record in a single page marked “confidential”.
Without the benefit of reviewing Evercom’s submissions, Petitioner is without knowledge as to
Evercom was initially served with the same requests on September 22,2006, however, refused to provide any
responses thereto, filing a “motion to quash” the FPSC’s subpoena with objections.

6

the true nature of the documents produced by Evercom. However, in view of both the
information gained by Petitioner in her civil action pending in the Southern District of Florida
federal court and in light of the type of documents sought by the FPSC outlined in its requests,
Petitioner believes Evercom’s blanket assertion as to confidentiality is neither warranted nor
supported by fact and law. Wherein, counsel for said Respondents is not opposed to the
inspection, examination and copying of the same, however, Petitioner seeks the same.
Subpoena dated February 6,2007 to Evercom but responded to by T-Netix
Request No. 1:

For each of the Miami-Dade facilities, please identify if ThreeWay Detection software was installed.

A.

Provide the date that the software was installed at each facility.

B.

Provide the date that the software was activated at each facility.
Response is confidential and has been redacted.

Response:
Request No. 2:

Please identify the technicians responsible for maintaining and
monitoring the Three-way Detection software at each facility.

A.

For each facility, provide the period for each technician that has been or
presently assigned to monitor and maintain the Three-way Detection
software

B.

For each facility, provide the period for each supervisor that has been or
presently assigned to monitor and maintain the Three-way Detection
software.

Response:
Request No. 3:

For each facility, where the Three-way Detection software was
installed, provide the following:

A.

The number of calls made from the inmate payphone system since the
Three-way detection software installation. (By month)

B.

The number of calls interrupted due to Three-way calls attempts detected
by the system since the date of the software installation. (By month)

7

C.

The number of calls interrupted due to DTMF detection by the system
since the date of the Three-way Detection software installation. (By
month)

Response:

Response is confjdentiat and has been redacted,

Request No. 4:

What are the criteria for setting the sensitivity level on the ThreeWay Detection software?

Response:

Response is confidential and has been redacted.

Request No. 5 :

Please explain how the software differentiates between a ThreeWay attempt and DTMF attempt?

Response :

Response,is confidential and has been redacted.

Request No. 6 :

Who is the primary person to have the ability to modify settings on
the Three-way Detection software?

Response:

Response isconfidential and has been redacted.

Request No.7:

What is the self adjustment component to the Three-way detection
software? Please answer the following:

r

-1.-

A.

How often is the software set to self adjust?

B.

Are records kept of each self adjustment?

C.

Is there a max percentage set for the sensitivity level?

Response:

Response,is confidential and has been redacted.

Request No. 8:

For each facility, please provide the names of the personnel
responsible for providing reports on the status and performance of
the sensitivity levels during the time the software has been
activated.

Response:

Response is confidential and has been redacted.

Request No. 9:

Are there records used to record the sensitivity settings for each
facility?

Response:

Response is confidential and has been redacted.

8

Request No. 10:

If the response to Interrogatory No. 9 is affirmative, please provide
copies of the log books that were used to record the sensitivity
settings at each facility.

Response:

Resjoqpfs confidential and has been redacted,

Request No. 1 1:

Please identify all other facilities where your company has
installed the Three-way Detection software within the state of
Florida.

Response:

.
R&spons&kp$ideniial
.*,a

?

and has been redacted.

Request No. 12:

If other facilities within the state of Florida are identified, then
please provide answers to questions 1 through 10 above.

Response:

Respons6 iscbnfidential and hasabeenaredacted.

Request No. 13:

Is there a refund policy in place for customers when it has been
determined that a call was incorrectly dropped by the Three-way
detection software? If so, what does the customer need to provide
to be to be eligible?

Response:

Response is.confidentia1 and has been redacted.

Request No. 14:

In June 2006, Evercom provided to the Commission a report
detailing that the number of calls repeated within 10 minutes of
drop was over 5 19,000 for the Miami-Dade Pretrial detention
center. However, the number reported to the Commission in
December of 2006, for all Miami-Dade facilities was significantly
lower. Please explain the discrepancy.

Response:

Response is confidential and has been redacted.

It is clear from a simple review of the above fourteen (14) requests, that most, if not all,
do not seek any documents which are confidential as defined under Florida law.
On March 7, 2007, T-Netix responded to FPSC’s subpoena(s) by asserting that all of its
responses were confidential. T-Netix asserts the confidentiality exception where it is clear none
existed. Rather, T-Netix’s uniform response and unilateral designation of documents as
“confidential” in unfounded.

9

In the past, FPSC has denied similar efforts to seek classification of documents as
confidential and should similarly deny Petitioner’s request here. See, e.g., Southern Bell Tel.

And Tel. Co. v. Beard, 597 So.2d 873 (1” DCA 1992) (FPSC “refused to grant confidential
classification to telephone company’s documents despite company’s argument that documents
were ‘critical self analysis’ [as] there was no exemption to Public Records Act for ‘critical self
analysis’ documents.. .Public Service Commission acted appropriately in concluding that
confidential classification was not required for documents telephone company produced during
discovery after officer of public council petitioned Commission to investigate and review the
company’s costs; documents were prepared by review committees and not by internal
auditors.. .Public Service Commission did not abuse its discretion in declining to afford
proprietary confidential business status to documents prepared by employees at telephone
company despite company’s contention that disclosure might result in embarrassment to
company’s managers, absent showing that documents fell within exceptions to Public Records
Act disclosure requirements”).
The request for confidential classification made by both Evercom and T-Netix should be
denied as the public disclosure of the documents sought by the FPSC would not subject “the
ratepayers or the person’s or company’s business operations” to harm by competitors. Fla. Stat.
Ann. Q 364.183(3). Moreover, Respondents’ blanket assertions of confidentiality are
confounding to say the least because the subpoenas and discovery requests do not seek any
“proprietary confidential business information” as defined by Fla. Stat. Ann. Q 364.1 83(3).
Therefore, Respondents’ concealment through redaction was unwarranted.

10

Rather, pursuant to rule, Petitioner has the right to inspect, examine and copy all of the
documents produced by Respondents. Pursuant to rule 25-22.006(5)(~)(2),
Florida
Administrative Code, which provides:
(5)(c)(2). Any person may file a petition to inspect and examine any material which has
been claimed confidential pursuant to 364.183(1), F.S. A copy of the petition must be
served on the affected telecommunications company or person which shall have 10 days
to file a response as to why the material should remain exempt. The petitioner shall have
7 days to file a reply to the filed response. The Commission may set the matter for
hearing or issue a ruling on the pleadings.
Petitioner asserts her right to inspect, examine and copy all submissions and documents produced
by Respondents in the underlying administrative action.
Inspection under 25-22.006(5)(~)(2) these alleged confidential documents is essential
of
to Plaintiff and the members of the state-wide class of aggrieved consumers in the continuing
prosecution of their case. At the core of Petitioner's claims against DefendantsRespondents, are
the very documents produced to the FPSC. To the extent that Respondents would argue that
they have produced documents or information containing individual consumers identity, the
same, if not already redacted, would be redacted prior to any copying of documents by Petitioner
to safe-guard such personal information.
WHEREFORE, Petitioner, respectfully requests that the Commission allow her to
inspect, examine and copy all material and documents filed in this Docket.
Respectfully submitted this 28'h day of March 2007.

s/ Doualass A. Kreis
Douglass A. Kreis, Esq.
R. Jason Richards, Esq.
Justin G. Witkin, Esq.
Aylstock, Witkin & Sasser, PLC.
4400 Bayou Blvd., Ste. 58
Pensacola, FL 32503
Phone: (850) 916-7450

11

Lance A. Harke, Esq.
Howard A. Bushman, Esq.
Hurke & Clasby LLP
155 South Miami Avenue, Suite 600
Miami, FL 33 130
(305) 536-8220 Phone
ATTORNEYS FOR KIRSTEN SALB

12

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served on the following

parties via electronic mail (*) and/or U.S. Mail this 28" day of March 2007:
Lee Eng Tan *
Office of General Counsel
Florida Public Service Commission
2540 Shumard Oak Blvd.
Tallahassee, FL 32399-0850
kscott@,usc.state.fl.us

David Silverman, Esq.
Global Tel*Link
12011 Lee Jackson Memorial Highway,
Suite 320
Fairfax, VA 22033
Tracy W. Hatch, Esq.
AT&T Communications of the Southern States,
Inc.
101 North Monroe Street, Suite 700
Tallahassee, FL 32301

Floyd R. Self, Esq. *
Messer, Caparello & Self, P.A.
P.O. Box 15579
Tallahassee, FL 32317
fself@,lawfla.com

Randy Hoffman
Vice President
Securus Technologies, Inc.
14651 Dallas Parkway, 6'hFloor
Dallas, TX 75254

Patrick Wiggins
Office of General Counsel
Florida Public Service Commission
2540 Shumard Oak Blvd.
Tallahassee, FL 32399-0850

Vicki Gordon Kaufman *
Moyle, Flanigan, Katz, Raymond, White &
Krasker, P.A.
The Perkins House
1 18 North Gadsden Street
Pensacola, FL 32301
vkaufmanki2moylelaw.com

TCG
Ms. Lynda Gaston
C/o Global Tel*Link Corporation
2609 Cameron Street
Mobile, AL 36607

s/ Douglass A. Kreis
DOUGLASS A. KREIS

13

EXHIBIT “A”

Case 1:06-cv-20290-UUB

Entered on FLSD Docket QW2612006 Page 7 of I B

D B m t 3 h d 68

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISTON
CASE NO.06-20290-C1V-UNCARO-BENAGES/O’SULLIVAN
KlRSTEN SALB. an individual,
on behalf of herselrand all others similarly

situated.
Plaintiff,
V.

EVERCOM SYSTEMS,INC.,
a Delaware corporation,

CORRECTIONAL BlLLTNG SERVICES,
a wholly owned division of

EVERCOM SYSTEMS,INC., and
T-NETIX, INC., a
Delaware corporation.
Defendants,
FIRST AMENDED CLASS ACTION COMPLAINT
Plaintiff,’Kirsten Salb

plaintiff'), hereby sues for herselF and all others similarly

situated, thc Defendants Evercom Systems, Inc. (“Evercom”),

B

Delaware corporation,

Evercom’s wholly owned division Correctional Billing Services (L’CBS’,), and T-Netix, Inc. (“T-

Netix”), a Dclaware corporation (collectively hereinafter “Defendants”), and alleges as follows:
INTRODUCTION
1.

This is a consumcr class action lawsuit brought on behalf of PIaintiff,

.

individually, and on behalfof pcrsons within the state of Florida who accepted collect calls from
corrcctioiial facilities in Florida though thc Defendants’ telephone systems. At all material times
the Dercndants knew or should have known that their telephone systems are Faulty and

HARKE
k
155 South Minmi Avriiuc

Suite M
O
O

C L A S B Y LLI’
‘fief, 305-538-)1220

Miami, FL 3.1130

Fax 3n5-5.lh-H219

I
I

I

Case 1:06-cv-20290-UUB D B m s h t f $8

Entered on FLSD Docket 09/23/2006

Page B of 12

improperly function in that they prematurely disconnect telephone calls, requiring additional
collect calls to be made to complete conversations at approximately 52.00 per collect call.
2.

As a result of Defendants’ aclions, Plaintiff brings clainis for common law

negligence. breach of contract, and unjust enrichmenl.
3.

Plaintiff seeks damages suffercd as a result of Defendants’ practices including but

not limited to reimbursement for all coIlect telephone calls received by all Florida consumers
from Florida correctional facilities which were prematurely disconnected due to Defendants’

defective telephone systems.

PARTIES, JUIiTSDICTION A N D VENUE
4.

Plaintiff Salb, individually arid in behalf of all others similarly situated class

members, is a resident of Miami-Dade County and citizen of the State of Florida and is otherwise
sirijitris. Plaintiff Salb received multiple collect calls from the Metro West Detention Center,

13850 N.W. 41” Street, Miami, Florida 33 178, which were prematurely disconnected. Plaintiff
Salb thcn received multiple second and third calls in ordcr to complete hcr conversations.
5.

Defcndant Evercom is a Delaware corporation with its principal place of business

in Dallas, Tcxi~s.Evercom owns and operates CBS. CBS is the Iargest telephone billing

company in Amcrica dedicated to the corrections industry. At all material times, CBS and
Everconi have done, and cotitinue to do, business in Florida and throughout the nation.

2

155 South Mianti Avrnuc

H A K K E & CLASIIY LLP
Miami, FL 33130 a Tel. 3M-536-8220

Suite GOO

9

Fax 305-536-8229

Case 1:06-cv-20290-UUB DBolamehtl68

0,

Entered on FLSD Docket 09/26/2006

Page 9 o 18
f

Defcndilnt T-Netix is a Delaware Corporation with its principal place of busjncss

in Dallas, Tcxas. CBS, also a division of T-Netix. provides billing and customer care for TNetix. At all rtiaterisll timcs, T-Netix has done, and continues to do, business in Florida and
throughout the nation
7.

This Court has jurisdiction pursuant to 28 U.S.C. fi 1332 because this is a class

action, as defined by 28 U.S.C. 1332(d)( I)@), in which a member of the putative class is a
#
citizen of a different slate than the Defendants and the amount in controversy exceeds the sum or
value of$S,000,000. See 28 U.S.C. 6 1332(d)(2).

8.

This Court has jurisdiction over Defendants because a substantial portion of the

wrongdoing alleged in this Complaint took place in Florida, Defendants are authorized to do

business here, Defendants have sufficient minimum contacts with Florida andor otherwise
avail themselves of the markets in Florida. Defendants seIl products or services
in~enlionnlly
w i t h the stak of Florida and in Miami-Dadc County, rendering the exercise ofjurisdiction by
Florida courts permissible under traditional notions of fair play and substantial justice.
9.

Venue i s proper in this district because a substantial part of the events and/or

omissions giving rise to Plaintiff's claims occurred in this district and/or Defendants are subject
to personal jurisdiction

in this district.

3

i

i

H A R K E CLASBY
&
LLP
155 Suuth Miami Avcnue

Suitc GOD

Miami, FL 3.3130

Tcl. ,305-536-82211

F3x 3115-536-8229

FACTUAL ALLEGATIONS

IO.

Defendants are the self-proclaimed largest independent providers of telephone

calling scrvices in Anierica dedicated to the corrections industry. T-Netix and Evercotn are

nffiliato companies operating under the same corporate untbrella. T-Netix and Evcrconi are
wholly owned subsidiaries of Securus Technologies, lnc. and share control of CBS.
11.

Defendants service approximately 3,300 correctional facitities in 49 states,

including locations operated by city, county, state and federal authorities and facilities such as
juvenile detention centers and private jails.
12.

Defendants design, install, operate and maintain their correctional calling systems.

13.

In order for a correctional inmate to niake a telephone call through the

Defendants' system,they are required to make a collect call. Collect calls reverse the charges for
the call to the receiver of the telephone call. The collect calls are far more expensive then

regular toll or telephone card cafls.
14.

Dcfendants cite security concerns for the reasoning behind the collect call

rcquiremen t.

IS.

DeFendants have negligently designed, installed, and operated their calling

systeiiis in that calls made from these systems routinely disconnect through no fault of the caller

or receiver of the call. This disconnect requires a second or third collect call to be made on its

system. Dcfcndatits bill on each collect-call made, so they necessarily benefit financially from
the additional collcct calls.
16.

Defendants are aware of the problem, but choose to blame the caller or receiver

CBS
rather than their systems. On the website, ~~iw~~.corrcctioiialbiIlin~servic~s.com,
4

HARKE CLASBY
&
LLF
155 South Miami Aver~uc Suite 600

Miattii, FL 33131,

.

Tcl. 305-536-8220

Fax

305-536-8229

enumerates the many reasons why the calls are disconnected. They include, but are not limited
to using a cordless phone, stopping the conversalion for any length of time, using a cellular

phonc, or putting the call on hold. These are nothing but excuses designed to shift the blame to
unwitting consumers rather than the Defendants.
17.

The truth is that thc systems themselves are defective and faulty, and must be

repaired or replaced.
18.

Defendants have no incentive to repair the systems because the only people they

are dccciving are correctional inmates and their families and friends, and Defendants make a
profit on each collect call made.
19.

Plaintiff and the class have been damaged by Defendants' conduct.

CLASS ACTION ALLEGATIONS

20.

Plaintiffbrings this case as a class action pursuant to common law negligence,

breach of conlract, and unjust enrichment. Plaintiff seeks certification of a class of Florida
consumers who received collect telephone calls through the Defendants' telephone systems. in

Florida that wcre prematurely disconnccted from January 2002 to the present. Excluded from
this Class are employees, officers, and directors of Defendants. Plaintiff Salb is a member of the

class in that she received multiple collect telephone calls though the Defendants' telephone
systenis which wcre prematurely disconncctcd within the class period. Plaintiff Salb was
requircd to pay additional moncy to complete her conversations.
21.

This action is proper for class treatment under Rules 23(b)( 1)(B) and 23(b)(3) of

the Federal Rules of Civil'Procedure. The proposed class is so numerous that individual joinder

of all members is impracticable. While the exact number and identities of the class members are
5

155 South Miinri Avenue

H A R K E & C L A S B Y LLI'
Suiv 600 * Mianii, FL 3.3130 Itl. 305-536-X2211

Fax 305-5lh-H224

unknown to Plaintiff at Lhis time, Plaintiff is informed and believes that the class numbers in thc
thousands, and likely tens of thousands.

22.

Thc class is readily definable via the Defendants' records as Defendants should

have a rccord of each consumcr's received calls.

23.

Questions of law and fact arise From Defendants' conduct described herein. Such

questions are common to all Class members and predominate over any questions affecting only
individual Class members. The myriad questions of law and fact common to the Class include:
whether Defendants' correctional telephone systems are defective;
whelher Defendants have a duty to maintain and operate correctional telephone
systems which will not prematurely disconnect telephone calls and whether
Defendants breached that duty;

whether Defendants knew or should have known that their correctional telephone
systems were defective;
whether the Defcndants fail to disclose thc actual reason for the disconnection of

,

a consumer's telephone call;
whether Plaintiff and the class have been damages and the measure of those
damages;
whether Defendants have been and continue to be unjustly enn'ched at the cxpense
of Plaintiff and the class members by its ongoing misconduct; qrid
whether Defendants must disgorge any and all profits they have made as a result

of.their misconduct.

G
HAKK&
E
155 South M"
i

Avcnuc

Suite 600

C L A s i i Y LLP
Miami, FL33130 Trl. 305-536-8220

R r 3U5-535-8229
i

24.

Plaintiff will fairly and adequately represent and pursue the interests of class

members. Plaintiff's counsel has vast experience in consumer class action cases. Plaintifr
undcrstands the nature of her claims herein, has no disqualifying conditions, and will vigorously
represent the interests of the Class.

COUNT I- UNJUST ENRICHMENT
25.

Plaintiff incorporates by reference paragraphs 1 through 24 as if fully set forth

herein and further alleges ils follows:
26.

Defendants received from Plaintiff and class mcntbers monetary compensation

from their use of Defendants' defective telephone systems which are excessive and

uiueasonable. and are the resuI1 of overcharging and overreaching. Defendants' telephone

systems routinely disconnect calls through no fault of the caller or receiver of the call. This
disconnect requires a second or third collect call to be made on its system. Defendants bill on
each collcct-call made, so they nccessan'ly benefit financially from the additional collect calls.
27.

A5 a result, Plaintiff and the.clzs have confcrred a benefit on Defendants, and

Defcndants have knowledge of this benefit and have voluntarily accepted and retained the

bcnefit conferred on them.
28.

Defendants will bc unjustly enriched if they are allowed to retain such funds, and

each class member is entitled to an amount equal to the amount each class member enriched

!
I

Defendants and for which Defendants have been unjustly cnriched.
WHEREFORE, Plaintiff and cbdss members demand an award against Dcfendank fur
ihe amounts equal to the'amount each class member enriched Defendants and for which

7

I

H A R K E C L A S I IL L P
&
Y
155 Suuih Minnti Avrnuc

Suirc h H *
M)

Miumi, FL 33130

Tcl. 305-536-8221)

Fax

305-536-82ZY
!

Defendants have been unjustly enriched, and such other relief as this Courl deems just and
proper.

COUNT 11- NEGLIGENCE
29.

Plaintiff incorporates by reference paragraphs 1 through 24 as if fully set forth

hcrein and further alleges as follows:

30.

Defendants designed, installed, maintained, and operated their correctional

rm
telephone systems to and for the benefit of consumers receiving collect calls f o correctional
facilities, and knew or should have known that consumers would receive telephone calls from
correctional facilities using Defendants’ telephone systems.

31.

Defendants owed Plaintiff and the class certain duties. These duties included the

duty to exercise reasonable care in designing, creating, installing, operating, and managing their

correctional telephone systems. Specifically. Defendants owed a duty to Plaintiff and the class to
do thc following:
a. Exercise reasonable care

in assuring that its correctional telephone systems

would work properly;
b. Exercise reasonable care in testing its correctional telephone systems;

c. Exercise reasonable care once the disconnection problems surfaced;

d. Properly warn Plaintiff (and consumers) of the fact that its telephone systems
were defective;

e. Properly refund to consumers those amounts paid as a result of Defendants’
defective correctional telephone systems; and
f. Properly repair Ihe defective telephone systems.

8

32.

Through the conduct described herein and above, Defendants breached their

duties to Plaintiff and the class. The following sub-paragraphs suni"+

Defendants' breaches

of duties to Plaintiff and the class and describe categories of acts or omissions constituting
breaches or duty by Derendants; each and/or any of these acts or omissions establishes an
independent basis for Defendants' liability in negligence:

a. Failure to exercise reasonable care in assuring that its correctional telephone
systems would work properly;
b. Failure to exercise reasonable care in testing its correctional telephone

systems;

c. Failure to exercise rensonable care once the disconnection problems surfaced;
d. Failure to properly warn consumers that its telephone systems were defective;
e. Failure to properly refund to consumers those amounts paid as a result of
Defendants' defective correctional telephone systems; and

f. Failure to properly repair the defective telephone systems.

33.

Defendants knew, or should have known. that, due to their failure to use

reasonable care, Plaintiff and consumers would unnecessarily pay vast amounts of.monies as a
result of premature telephone call disconnections.

34.

As the direct and legal cause and result of the Defendants' negligence,

Plaintiff and the class have been injured and have incurred damages in that they paid monies to
which they should not have had to pay as D result of muItiple premature collect telephone call

disconnections.

35.

Plaintiff and the class are therefore entitled to damages in an amount to be proven

at trial, together with

interest thereon and costs.
9

HARKE CLASBY
&
LLP
155Souih Miami Avcnuc

Suite GOO

Mhmi, FL3313U

7i.I. 305-536-82213

Fax 3U5-53h-HZ2Y
I

Case 1:06-cv-20290-UU8 D00uurraah868

Entered on FLSD Docket (D912612006

Page 10 o 18
f

WHEREFORE Plaintiff and the closs respectfully request entry of a judgment against
Defendants for compensatory damages and such other rclief as may be deemed necessary and
proper.

COUNT IIJ-BREACH
36.

OF CONTRACT

Plaintiff incorporates by reference paragraphs 1 through 24 as if fully set forth

hercin and further alleges as follows.
37.

The Defendants provide telephone services for the corrections industry. Plaintiff

and ciass members,through their agreement to accept telephone calls via the Defendants’

telephone systems, have entered into a valid contract with Defendants.

38.

Defendants had a duty under the contract to provide functional telephone systems

which would not prematurely disconnect calls. Defendants materially breached the parties’
contract when they provided defectivc correctional telephone systems which disconnect
telephone calls prematurely.
39.

Defendants had identical contracts with all class members. Defendants uniformly

breached their duties to a11 class members.
40.

Plaintiff and the class have been daniaged by Defendants’ breach of contract in

that the premature disconncct requires a second or third collect call to be made on the
Defendants’ system. Consumers are billed on each collect-call made and have incurred
unncccssary charges as a result of the Defendants’ conduct.

IO

155 South Miami Avenue

-

-

H A H K EC L A S B L L P
&
Y
Suiic GOO

Miami, FL3.31313

XI. 305-536-8220

Fax 3n5-536-HZZY

Case 4:06cv-20290-UUB

Entered on FLSD Docket 09/26/2006

DBwmst7U 68

Page 17 of 18

WHEREFORE Plaintiff and class members request that this Court enter judgment against
the Dcfeiidants and in favor of Plaintiff and the class for damages, pre-judgment interest and
such other relief ils this Court deems just and appropriate.

DEMAND FOR TRIAL BY JURY
41.

Plaintiff, individually and on bchalf of a11 others similarly situated, hereby

demands ajury trial on all claims so triable.
Respectfully submitted,

Lance A. Harke, P.A.
Florida Bar No. 863599
Howard M. Bushman, Esq.
Florida Bar No. 0364230

HARKE & CLASBY LLP
155 South Miami Ave., Suite 600
Miami, Florida 33 130 .
Telephone:
(305) 536-8220
.Telecopier: . (305) 536-8229

Co-Coirrrselfor Pluiwif/& Clcm Members

-and-

Justin G. Witkin, Esq.
Florida Bar No. 0109584
R.Jason Richards
Florida Bar No. 0018207

AYLSTOCK, WITKIN & SASSER,P.L.C..
55 Baybridge Drive

GulfBreeze, Florida 32501
Telephone: (850) 916-7450
Telecopier: (850) 916-7449

Co-Cowuel for Plairirifldi Class Members
11

W A H K E & C L A S H YL P
L
155South Miami Avenuc

Suite GOO

Miami, FLU130

Tcl. 305-5364220

Fax 305-536-8229

Case 1:06-~~-2029&UUBDBwunashtl fi
f9

Entered on FLSD Docket (D9/26/2006 Page I S of 13
1

-and-

Glen Z. Golberg, Esq.
Florida Bar No.0458953
GOLDBERG & ROSEN, P.A.
1101 Brickell Ave, Suite 900
Miami, Florida 33131
Telephone: (305)374-4200
Telecopier: (305)374-8024
Co-Corrmelfor Plaiutifldi Class Menibers

HAKRE CLASHY
k
LLP
155 Srwh Miami Avriiuc

Suirc 600

Miami, FL33130

Tel. 105-53(i-R22O Fax 3U5-5.lh-HZZY