Prison Phone Justice

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 1 of 50

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
BENSON GITHIEYA, et al.,
Plaintiffs,
v.
GLOBAL TEL LINK CORP.,

CIVIL ACTION NO:
1:15-CV-00986-AT

Defendant.
UNOPPOSED MOTION FOR PRELIMINARY
APPROVAL OF CLASS ACTION SETTLEMENT
Michael A. Caplan
James W. Cobb
T. Brandon Waddell
Sarah Brewerton-Palmer
Ashley C. Brown
CAPLAN COBB LLP
75 Fourteenth Street, NE, Suite 2750
Atlanta, Georgia 30309
(404) 596-5600 – Office
(404) 596-5604 – Facsimile
mcaplan@caplancobb.com
jcobb@caplancobb.com
bwaddell@caplancobb.com
spalmer@caplancobb.com
abrown@caplancobb.com

Barry Goldstein
Linda M. Dardarian
GOLDSTEIN, BORGEN,
DARDARIAN & HO
155 Grand Avenue, Suite 900
Oakland, California 94612
(510) 763-9800
bgoldstein@gbdhlegal.com
ldardarian@gbdhlegal.com
James Radford
Georgia Bar No. 108007
RADFORD & KEEBAUGH, LLC
315 W. Ponce de Leon Ave.
Suite 1080
Decatur, Georgia 30030
(678) 271-0300
james@decaturlegal.com

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 2 of 50

TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... i
TABLE OF AUTHORITIES ................................................................................... iv
INTRODUCTION .................................................................................................... 1
BACKGROUND AND PROCEDURAL HISTORY .............................................. 4
I.

Background .......................................................................................... 4

II.

Settlement Terms ................................................................................. 6
A.

The Settlement Class.................................................................. 6

B.

The Settlement Fund .................................................................. 7

C.

Non-Monetary Relief ................................................................. 8

LEGAL STANDARD .............................................................................................. 9
ARGUMENT AND CITATION TO AUTHORITY ............................................. 12
I.

This Court should preliminarily certify the Settlement Class
because it meets all requirements of Rule 23(a) and (b). ................... 12
A.

The Settlement Class meets the requirements of Rule 23(a). .. 12
1.

The Settlement Class is ascertainable. ........................... 12

2.

The Settlement Class is sufficiently numerous.............. 13

3.

There are questions of fact and law common to the
Settlement Class. ........................................................... 14

4.

The class representatives’ claims are typical of the
Settlement Class. ........................................................... 14

i

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 3 of 50

5.

B.

The Settlement Class meets the requirements of Rule 23(b). .. 18
1.

2.

II.

The class representatives and class counsel are
adequate to protect the interests of the
Settlement Class. ........................................................... 15

The Settlement Class satisfies Rule 23(b)(3). ............... 18
i.

Common issues of law and fact predominate...... 18

ii.

Class-wide settlement is the superior method
for resolving the claims at issue in this case. ...... 19

The Settlement Class also satisfies Rule 23(b)(2)
with respect to the non-monetary relief the
settlement provides. ....................................................... 20

The Court should preliminarily approve the proposed settlement
because it is fair, reasonable, and provides more than sufficient
benefits to the class members. ............................................................ 22
A.

The Settlement Class was well represented, and the
settlement resulted from a good-faith and arm’s-length
negotiation................................................................................ 23

B.

The settlement provides significant benefits to the class. ........ 26
1.

The proposed settlement avoids the costs, risks,
and delay of trial and appeal. ......................................... 28

2.

The claims process is simple and, for many
Settlement Class members, automatic. .......................... 30

3.

The settlement provisions regarding attorneys’
fees are reasonable. ........................................................ 31

C.

The settlement treats class members equitably. ....................... 32

D.

The Bennett factors favor preliminary approval. ..................... 33
ii

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 4 of 50

E.
III.

There are no undisclosed side agreements. .............................. 35

The Court should approve the form and plan for disseminating
notice to the class members. ............................................................... 36
A.

The Court should adopt the parties’ proposed
notice program. ........................................................................ 36

B.

The Court should adopt the parties’ proposed
settlement schedule. ................................................................. 39

CONCLUSION....................................................................................................... 40
LOCAL RULE 7.1(D) CERTIFICATION ............................................................. 42
CERTIFICATE OF SERVICE ............................................................................... 43

iii

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 5 of 50

TABLE OF AUTHORITIES
CASES
Amchem Prods., Inc. v. Windsor,
521 U.S. 591 (1997)................................................................................ 18, 19, 20
Battle v. Liberty Nat’l Life Ins. Co.,
770 F. Supp. 1499 (N.D. Ala. 1991),
aff’d 974 F.2d 1279 (11th Cir. 1992) .................................................................. 18
Bennett v. Behring Corp.,
737 F.2d 982 (11th Cir. 1984) ...................................................................... 11, 33
Camden I Condo. Ass’n, Inc. v. Dunkle,
946 F.2d 768 (11th Cir. 1991) ............................................................................ 31
Cherry v. Dometic Corp.,
986 F.3d 1296 (11th Cir. 2021) .................................................................... 12, 19
Columbus Drywall & Insulation, Inc. v. Masco Corp.,
258 F.R.D. 545 (N.D. Ga. 2007) .................................................................. 10, 11
Georgia Advoc. Off. v. Jackson,
No. 1:19-CV-1634-WMR-JFK, 2019 WL 8438491 (N.D. Ga. July 30, 2019),
report and recommendation adopted, No. 119CV01634WMRJFK,
2019 WL 8438493 (N.D. Ga. Sept. 10, 2019) .................................................... 22
In re Arby’s Rest. Grp., Inc. Data Sec. Litig.,
No. 1:17-CV-1035-WMR, 2019 WL 2720818 (N.D. Ga. June 6, 2019) ........... 33
In re Checking Acct. Overdraft Litig.,
275 F.R.D. 654 (S.D. Fla. 2011) ......................................................................... 20
In re Checking Acct. Overdraft Litig.,
307 F.R.D. 656 (S.D. Fla. 2015) ......................................................................... 14
iv

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 6 of 50

In re Checking Acct. Overdraft Litig.,
830 F. Supp. 2d 1330 (S.D. Fla. 2011) ............................................................... 31
In re Equifax Inc. Customer Data Sec. Breach Litig.,
999 F.3d 1247 (11th Cir. 2021) ................................................................ 9, 11, 31
In re Equifax Inc. Customer Data Sec. Breach Litig.,
No. 1:17-MD-2800-TWT, 2020 WL 256132 (N.D. Ga. Mar. 17, 2020),
rev’d in part on other grounds, 999 F.3d 1247 (11th Cir. 2021) ................. 23, 29
In re HealthSouth Corp. Sec. Litig.,
334 F. App’x 248 (11th Cir. 2009) ..................................................................... 36
In re Tri-State Crematory Litig.,
215 F.R.D. 660 (N.D. Ga. 2003) ........................................................................ 15
J.M. by & through Lewis v. Crittenden,
337 F.R.D. 434 (N.D. Ga. 2019) .................................................................. 21, 22
Johnson v. NPAS Sols., LLC,
975 F.3d 1244 (11th Cir. 2020) .......................................................................... 33
Kornberg v. Carnival Cruise Lines, Inc.,
741 F.2d 1332 (11th Cir. 1984) .......................................................................... 15
Lewis v. ARS Nat’l Servs., Inc.,
No. 2:09CV1041-MHT, 2011 WL 3903092 (M.D. Ala. Sept. 6, 2011) ............ 19
Little v. T-Mobile USA, Inc.,
691 F.3d 1302 (11th Cir. 2012) .......................................................................... 10
Sanchez-Knutson v. Ford Motor Co.,
310 F.R.D. 529 (S.D. Fla. 2015) ................................................................... 16, 17
Tyson Foods, Inc. v. Bouaphakeo,
577 U.S. 442 (2016)............................................................................................ 18
v

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 7 of 50

Wal-Mart v. Dukes,
564 U.S. 338 (2011)............................................................................................ 21
Williams v. Mohawk Indus., Inc.,
568 F.3d 1350 (11th Cir. 2009) .......................................................................... 14
Williams v. Mohawk Indus., Inc.,
No. 4:04-CV-03-HLM, 2010 WL 11500531 (N.D. Ga. Apr. 12, 2010) ............ 20
Wilson v. EverBank,
No. 14-CIV-22264, 2016 WL 457011 (S.D. Fla. Feb. 3, 2016) ......................... 25
RULES
Fed. R. Civ. P. 23 advisory committee’s note to 2018 amendments ................ 23, 25
Fed. R. Civ. P. 23(a)(1)........................................................................................... 13
Fed. R. Civ. P. 23(a)(2)........................................................................................... 14
Fed. R. Civ. P. 23(a)(3)........................................................................................... 15
Fed. R. Civ. P. 23(a)(4)........................................................................................... 15
Fed. R. Civ. P. 23(b)(2) .................................................................................... 10, 21
Fed. R. Civ. P. 23(b)(3) .......................................................................................... 10
Fed. R. Civ. P. 23(e)(2).................................................................................... passim
Fed. R. Civ. P. 23(e)(3)........................................................................................... 35
Fed. R. Civ. P. 23(g) ............................................................................................... 15

vi

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 8 of 50

INTRODUCTION
Following six and-a-half years of hard-fought litigation, three mediations,
and over six weeks of challenging negotiations of the final settlement agreement,
Plaintiffs Benson Githieya, Darlene Byers, the Estate of Nellie Lockett, Michelle
Mendoza, Sarai Morris, Betty Davis, and Adrian Mohamed (together, the “Class
Plaintiffs”) and Defendant Global Tel*Link Corporation (“GTL”) have reached an
agreement to settle this case, providing comprehensive relief for a proposed
nationwide class of AdvancePay accountholders who were impacted by GTL’s
inactivity policy. The proposed settlement class encompasses any person,
nationwide, who established and funded a prepaid account through GTL’s
interactive-voice response system and lost money due to GTL’s inactivity policy
between April 3, 2011 and October 6, 2021.
In exchange for a release of Plaintiffs’ claims, the proposed settlement
requires GTL to establish a settlement fund of up to $67 million through which
members of the settlement class can receive a full reimbursement of 100% of the
amount of funds they lost as a result of GTL’s inactivity policy. Those class
members who currently have an active AdvancePay account will automatically
receive a 100% credit on their active account without having to file a claim form or
take any other action. The remaining Class members, who do not have an active

1

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 9 of 50

AdvancePay account, can file a simple, one-page claim form to receive a full
refund of any funds that GTL retained under its inactivity policy. Moreover, in the
event former AdvancePay account holders do not file a claim, those class members
will still automatically receive a credit for their claim amount if they establish an
AdvancePay account at any point in the two years after the settlement becomes
final. In short, the proposed settlement does everything reasonably possible to
return to class members nationwide the money that GTL retained as a result of its
inactivity policy.
The proposed settlement goes further still by achieving reforms to GTL’s
inactivity policy that will prevent the kind of alleged breaches of contract that
resulted in this lawsuit. The settlement agreement requires that GTL clearly
disclose and obtain the consent of future account holders to its inactivity policy. In
addition, the settlement agreement requires GTL to (i) extend the minimum
inactivity period from 90 days to 180 days before an account is deemed inactive
and the money therein becomes subject to forfeiture; (ii) provide refunds to
accountholders of any unused money in active AdvancePay accounts; (iii) require
affirmative assent to the inactivity policy by new accountholders; (iv) provide preforfeiture notices to accountholders to alert them to the inactivity policy and

2

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 10 of 50

instruct them on how to avoid having funds in their account taken; and (v) bolster
training for customer service personnel about the inactivity policy.
Considering the monetary and non-monetary aspects of this settlement
together, it is difficult to imagine a more successful outcome for class members in
this case. The proposed settlement class has now expanded nationwide—not just
limited to Georgia and South Carolina, as with the litigation class. Each settlement
class member will be eligible for a 100% refund of the money that GTL took from
his or her AdvancePay account. On top of that, the non-monetary relief provisions
ensure that, at least for the five-year compliance period, GTL will make
substantive reforms to its inactivity policy and provide accountholders with fair
notice before reducing inactive account balances (after at least 180 days of
inactivity) to $0.00. The proposed settlement therefore achieves more than the
class likely could have obtained had the case been litigated through trial.
Because the proposed settlement is highly favorable to the class, and for the
reasons explained below, Plaintiffs now ask that the Court certify the nationwide
settlement class, preliminarily approve this settlement, and direct that notice be
issued to potential class members pursuant to the parties’ notice plan.

3

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 11 of 50

BACKGROUND AND PROCEDURAL HISTORY
I.

Background
On April 3, 2015, Githieya filed a complaint in this Action, on behalf of

himself and a putative nationwide class. Dkt. 1.1 The complaint challenged GTL’s
inactivity policy for prepaid accounts established through the IVR under federal
and state law and sought an injunction, damages, attorneys’ fees, and costs. Id.; see
also dkt. 72 at 23; dkt. 178 at 2. GTL moved to compel Plaintiff Githieya to
arbitrate his claims. Dkt. 17. The Court granted the motion, dkt. 23, but the
arbitrator ultimately determined that the claims were not arbitrable, dkt. 27-1.
On October 23, 2017, the Court allowed Darlene Byers and Nellie Lockett to
be added as potential additional class representatives, and Plaintiffs filed their
Second Amended Class Action Complaint. Dkt. 71; see also dkt. 72. For nearly a
year, the parties engaged in extensive discovery, exchanging hundreds of
thousands of pages of documents and data and taking more than half a dozen
depositions. The parties also engaged in significant motions practice, including
multiple disputes regarding the scope of discovery, GTL’s motion to dismiss all of

1

For docket entries, Plaintiffs cite the page numbers assigned by the Court’s
CM/ECF system, not any internal pagination.
4

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 12 of 50

Plaintiffs’ claims, Plaintiffs’ motion for class certification, and Plaintiffs’ motion
for sanctions.
In their third amended complaint and later in their motion for class
certification, Plaintiffs asked the Court to certify the following class:
All persons nationwide who (i) established and funded a prepaid
account through GTL’s interactive-voice-response (“IVR”) system
and (ii) had a positive account balance that was reduced to $0.00 due
to account inactivity for 180 days or less.
Dkt. 178 at 14; dkt. 123-1 at 5. On November 30, 2020, the Court granted
Plaintiffs’ motion for class certification as to their claims for breach of contract and
unjust enrichment. The Court modified the class definition, certifying a class
defined as follows:
All persons nationwide who (i) established and funded a prepaid
account through GTL’s interactive-voice-response (“IVR”) system in
order to receive telephone calls from a person incarcerated in Georgia
or South Carolina, and (ii) had a positive account balance that was
reduced to $0.00 due to account inactivity for 180 days or less on or
after April 3, 2011.
Dkt. 278 at 17.
On December 14, 2020, GTL filed a petition for permission to appeal the
Court’s class-certification decision to the Eleventh Circuit pursuant to Federal Rule
of Civil Procedure 23(f). The Eleventh Circuit declined the appeal. See dkt. 302.
In April 2021, Plaintiffs sought leave to conduct discovery in support of a

5

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 13 of 50

planned motion to expand the class definition to include all persons nationwide
affected by GTL’s inactivity policy, and the Court granted that request. Dkt. 281 at
1–9. In addition, on June 18, 2021, Plaintiffs filed a motion to add Plaintiffs
Michelle Mendoza, Sarai Morris, Betty Davis, and Adrian Mohamed. Dkt. 297.
The parties agree that these new plaintiffs should be added to this action and serve
as representatives of the settlement class. See Ex. 1 (Settlement Agreement) at 8.
Following several months of discovery, the parties agreed to stay the case to
engage in settlement discussions and mediation. Dkt. 318. On September 30, 2021,
and October 1, 2021, the parties engaged in a mediation before Hunter R. Hughes,
III. Within several days of that mediation, the parties reached agreement on the
material terms of settlement by executing a Confidential Settlement Term Sheet.
Ex. 2 (Declaration of Michael Caplan) ¶¶ 42–43. The parties signed the final Class
Action Settlement Agreement on November 26, 2021. Id. ¶ 47.
Plaintiffs now move this Court to preliminarily approve the proposed
settlement agreement and to issue notice to the Settlement Class.
II.

Settlement Terms
A.

The Settlement Class

The proposed settlement defines the Settlement Class as: “All persons
nationwide who (i) established and funded a prepaid account through GTL’s

6

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 14 of 50

interactive-voice response (‘IVR’) system and (ii) had a positive account balance
that was reduced to $0.00 due to account inactivity for 180 days or less on or after
April 3, 2011, and through and including October 6, 2021.” Ex. 1 at 17-18.
B.

The Settlement Fund

The Settlement Fund consists of up to $67 million in cash and credits
combined, inclusive of (i) attorneys’ fees, costs, and expenses; (ii) the casecontribution award to the class representatives; and (iii) notice and administrative
costs.2 From the Settlement Fund, each Settlement Class member will be entitled
to claim or be credited the amount of deposits retained by GTL due to the
inactivity policy from April 3, 2011 through October 6, 2021 (the “Claim
Amount”). Those claims or credits will be distributed in the following manner:
• Current AdvancePay Accountholders. For Settlement Class members
who currently have an AdvancePay account, GTL will automatically
credit their account with their Claim Amount, without the need for
that class member to submit a claim form.
• Former AdvancePay Accountholders. For Settlement Class members
who do not have a current AdvancePay account and who timely
submit a claim form, the Settlement Administrator will pay that
member their Claim Amount by check, prepaid debit card, or
electronic payment within 30 days of either final approval of the
proposed settlement or the date the settlement administrator
2

The amount of the Settlement Fund available to pay class members’ claims
(i.e., the Settlement Fund less attorneys’ fees, case-contribution awards, and notice
and claims administration costs) is referred to in the Settlement Agreement as the
“Net Settlement Consideration.”
7

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 15 of 50

determines Claim Amounts. For Settlement Class members without a
current account who do not submit a claim form, but who reactivate
an AdvancePay account within two years following final approval of
the proposed settlement, GTL will automatically credit that account
with the class member’s Claim Amount. Id. at 22–24.3
C.

Non-Monetary Relief

In addition to the Settlement Fund, the proposed settlement provides for
significant non-monetary relief. For a period of five years following final approval
of the proposed settlement, GTL has agreed to the following requirements:
• Longer Inactivity Period. GTL has agreed to lengthen the period of
time required before initiating the inactivity policy to 180 days
nationwide—up from the previous standard time period of 90 days.
Ex. 1 at 26–27.
• Disclosure of and Assent to Inactivity Policy. GTL has agreed to
revise its IVR script to include a disclosure that (i) describes the 180day inactivity policy, (ii) states that any funds remaining in an inactive
account are subject to forfeiture, and (iii) states how forfeited unused
funds can be refunded to the holder’s AdvancePay account by
contacting GTL’s customer service. Importantly, the IVR system will
require new accountholders to press a button to manifest assent to the
inactivity policy. Id. at 27–28.
• Notices of Inactivity Policy. GTL will also maintain a banner on the
homepage of its website that will provide a detailed disclosure
regarding the 180-day inactivity policy, along with information about
3

If the Settlement Fund is exhausted during the two-year automatic credit
period, GTL’s obligation to continue to automatically credit non-claiming class
members’ reactivated accounts will cease. Ex. 1 at 24–25. During the two-year
automatic credit period, GTL is required to provide semi-annual reports to class
counsel regarding its payment of credits during this period. Id. at 24.
8

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 16 of 50

how an accountholder can keep their account active or can obtain a
refund of unused funds. GTL will also provide enhanced disclosures
about its inactivity policy and refund policy in any printed materials
that it uses to market or advertise AdvancePay accounts. Id. at 28.
• Training of Customer Service Personnel. GTL will include enhanced
disclosures of the inactivity policy similar to those described above in
its training documents for customer service personnel. Within 45 days
of the settlement becoming effective, GTL will provide training on the
inactivity policy and the changes dictated by the proposed settlement
to all customer-service personnel. GTL will provide the same training
to any new customer-service personnel within 45 days of their hiring.
Id. at 28–29.
• Refund Policy. GTL will permit any AdvancePay accountholder to
obtain a refund of any funds remaining in their account at any time
while the account remains active. Id. at 29.
• Pre-Forfeiture Notification. GTL will allow AdvancePay
accountholders to opt into receiving a text message notifying them of
the possibility of forfeiture 30 days before any funds in their account
become subject to forfeiture due to inactivity and of their right to
request a refund of their account balance during those 30 days. GTL
will also provide an opportunity for accountholders to opt into similar
email notices. Id. at 29–31.
LEGAL STANDARD
“A class action may be settled only with court approval . . . .” In re Equifax
Inc. Customer Data Sec. Breach Litig. (“In re Equifax”), 999 F.3d 1247, 1273
(11th Cir. 2021). This Motion addresses the first stage of the approval process:
preliminary approval and notice to the settlement class members. In considering a
motion for preliminary approval, this Court must follow a three-step analysis.

9

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 17 of 50

First, this Court must determine that certification of the settlement class is
appropriate under Federal Rules of Civil Procedure 23(a) and (b). Columbus
Drywall & Insulation, Inc. v. Masco Corp., 258 F.R.D. 545, 553 (N.D. Ga. 2007).
The parties “must first establish that the four prerequisites of Rule 23(a)—
numerosity, commonality, typicality, and adequacy of representation—are met.”
Id. The parties “must also establish that one of the three requirements of Rule 23(b)
is met.” Id. Under Rule 23(b)(2), certification is appropriate where the defendant
has “acted or refused to act on grounds that apply generally to the class, so that
final injunctive relief . . . is appropriate respecting the class as a whole . . . .” Fed.
R. Civ. P. 23(b)(2). Under Rule 23(b)(3), certification is appropriate where
“questions of law or fact common to class members predominate over any
questions affecting only individual members, and [where] a class action is superior
to other available methods for fairly and efficiently adjudicating the controversy.”
Fed. R. Civ. P. 23(b)(3). In addition, the parties “must establish that the proposed
class is adequately defined and clearly ascertainable.” Little v. T-Mobile USA, Inc.,
691 F.3d 1302, 1304 (11th Cir. 2012).
Second, if this Court determines that the settlement class can be certified
under Rule 23, then this Court must “find the settlement ‘fair, reasonable, and
adequate’ based on a number of factors” listed in Federal Rule of Civil Procedure

10

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 18 of 50

23(e)(2). In re Equifax, 999 F.3d at 1273. The Eleventh Circuit “has also instructed
district courts to consider several additional factors called the Bennett factors.” Id.
(citing Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir. 1984)). The Bennett
factors include: (1) the likelihood of success at trial; (2) the range of possible
recovery; (3) the point on or below the range of possible recovery at which
a settlement is fair, adequate and reasonable; (4) the complexity, expense and
duration of litigation; (5) the substance and amount of opposition to the settlement;
and (6) the stage of proceedings at which the settlement was achieved. Bennett,
737 F.2d at 986. This Court’s judgment regarding the fairness, reasonableness, and
adequacy of the settlement must be “informed by the strong judicial policy
favoring settlement as well as by the realization that compromise is the essence of
settlement.” Id.
Third, should the Court determine that preliminary approval is appropriate,
the Court must then evaluate the notice procedures proposed by the parties and
direct how combined notice of the proposed class and settlement will be issued to
class members. Columbus Drywall & Insulation, Inc., 258 F.R.D. at 560–61.

11

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 19 of 50

ARGUMENT AND CITATION TO AUTHORITY
I.

This Court should preliminarily certify the Settlement Class because
it meets all requirements of Rule 23(a) and (b).
As explained more fully below, the parties’ proposed Settlement Class meets

all requirements of Rule 23. Accordingly, this Court should preliminarily certify
the Settlement Class.
A.

The Settlement Class meets the requirements of Rule 23(a).
1.

The Settlement Class is ascertainable.

Before reaching the enumerated pre-requisites of Rule 23(a), this Court must
first determine that the “proposed class is adequately defined and clearly
ascertainable.” Cherry v. Dometic Corp., 986 F.3d 1296, 1302 (11th Cir. 2021)
(internal quotation marks omitted). For purposes of this inquiry, “a proposed class
is ascertainable if it is adequately defined such that its membership is capable of
determination.” Id. at 1304. “A class is inadequately defined if it is defined through
vague or subjective criteria.” Id. at 1302.4
Here, the parties’ settlement defines the Settlement Class as “[a]ll persons
nationwide who (i) established and funded a prepaid account through GTL’s

4

In Cherry, the Eleventh Circuit joined the Second, Sixth, Seventh, Eighth,
and Ninth Circuits in holding that the ascertainability inquiry does not include an
administrative feasibility requirement. Cherry, 986 F.3d at 1302.
12

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 20 of 50

interactive-voice response (‘IVR’) system and (ii) had a positive account balance
that was reduced to $0.00 due to account inactivity for 180 days or less on or after
April 3, 2011, and through and including October 6, 2021.” Ex. 1 at 17–18. This
definition uses clear and objective criteria that would allow this Court to determine
who is a member of the Settlement Class. Moreover, the Settlement Agreement
clearly sets forth the manner in which the class is to be identified by reference to
available GTL data. Id. at 47–51. As a result, the Settlement Class easily satisfies
the Cherry ascertainability standard.
2.

The Settlement Class is sufficiently numerous.

Next, the Court must consider each of the enumerated requirements in Rule
23(a). The first of those requirements is that the Settlement Class is sufficiently
numerous “that joinder of all class members is impracticable.” Fed. R. Civ. P.
23(a)(1). The Settlement Class easily meets this test, as the potential Settlement
Class members number in the millions, Ex. 2 ¶ 59, rendering joinder impossible.
Indeed, the Settlement Class is larger than the Litigation Class, which this Court
has already found sufficiently numerous to warrant class treatment. Dkt. 276 at 28–
29. As a result, the Settlement Class satisfies the numerosity requirement.

13

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 21 of 50

3.

There are questions of fact and law common to the
Settlement Class.

Rule 23(a)(2) requires that there be “questions of law or fact common to the
class.” Fed. R. Civ. P. 23(a)(2). The commonality requirement is a “low hurdle”
because it requires only “that there be at least one issue whose resolution will
affect all or a significant number of the putative class members.” Williams v.
Mohawk Indus., Inc., 568 F.3d 1350, 1355–56 (11th Cir. 2009). The “commonality
element is generally satisfied when a plaintiff alleges that Defendants have
engaged in a standardized course of conduct that affects all class members.” In re
Checking Acct. Overdraft Litig., 307 F.R.D. 656, 668 (S.D. Fla. 2015) (internal
quotation marks and citations omitted). Such is the case here. The Settlement
Class’s claims are all rooted in a common factual issue: GTL’s use of a uniform
inactivity practice with respect to each of the putative Settlement Class members’
prepaid accounts. That practice is central to each of the claims in this case and is
common to each settlement class member. E.g., dkt. 123-1 at 21–33; dkt. 276 at
21–27. Thus, the Settlement Class satisfies the commonality requirement.
4.

The class representatives’ claims are typical of the
Settlement Class.

The class representatives also meet Rule 23(a)(3)’s requirement that “the
claims or defenses of the representative parties are typical of the claims or defenses

14

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 22 of 50

of the class.” Fed. R. Civ. P. 23(a)(3). A “representative plaintiff’s claim is typical
if it arises from the same event or practice or course of conduct that gives rise to
the claims of the other class members, and his or her claims are based on the same
legal theory.” In re Tri-State Crematory Litig., 215 F.R.D. 660, 690 (N.D. Ga.
2003) (internal quotation marks omitted).
This Court has already found the initial class representatives to have claims
typical of those of the Litigation Class. Dkt. 276 at 29–30. This same conclusion
holds for the Settlement Class, as both the class members and the class
representatives all complain of the same kind of injury “from the same event or
pattern or practice”— i.e., they all had their account balances reduced to $0.00 due
to GTL’s inactivity policy. Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d
1332, 1337 (11th Cir. 1984). As this Court noted in its class-certification order,
GTL’s practice of taking AdvancePay account holders’ deposits after a period of
inactivity “is relatively uniform nationwide.” Dkt. 276 at 18. As a result, the class
representatives’ claims are typical of the Settlement Class.
5.

The class representatives and class counsel are adequate to
protect the interests of the Settlement Class.

Finally, Rule 23(a)(4) requires that “the representative parties will fairly and
adequately protect the interests of the class,” and Rule 23(g) requires this Court to
appoint adequate counsel to represent the class. Fed. R. Civ. P. 23(a)(4) & (g).
15

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 23 of 50

“To adequately represent a class, a named plaintiff must show that she
possesses the integrity and personal characteristics necessary to act in a fiduciary
role representing the interests of the class, and has no interests antagonistic to the
interests of the class.” Sanchez-Knutson v. Ford Motor Co., 310 F.R.D. 529, 540
(S.D. Fla. 2015). This Court has already found Mr. Githieya, Ms. Byers, and Ms.
Lockett5 to be adequate representatives of the Litigation Class. Dkt. 276 at 30. In
addition, Plaintiffs have moved this Court for leave to add four additional class
representatives: Michelle Mendoza, Sarai Morris, Betty Davis, and Adrian
Mohamed. Dkt. 298. As discussed in that motion, and as is particularly relevant for
purposes of certifying the nationwide Settlement Class, these four potential
representatives add geographic diversity to the group of class representatives, as
they reside in or have received calls from prisons in California, Texas, Ohio,
Pennsylvania, Michigan, and Arizona. Id. at 2. Each of these seven potential
representatives understand the gravamen and gravity of this case, as well as their
duties and fiduciary obligations as class representatives. Ex. 2 ¶ 84. None of them
have interests antagonistic to members of the Settlement Class, and each of them
will vigorously protect the Settlement Class. Id. ¶ 85. This Court should therefore
5

Plaintiff Nellie Lockett passed away earlier this year. On November 3, 2021,
the Court substituted her husband, Mr. Bobby G. Lockett, as administrator of Ms.
Lockett’s estate. See dkt. 323.
16

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 24 of 50

grant Plaintiffs’ Motion to Add Plaintiffs (dkt. 298) and appoint each as a
Settlement Class representative.
With respect to appointment of class counsel, this Court “must consider: (i)
the work counsel has done in identifying or investigating potential claims in the
action; (ii) counsel’s experience in handling class actions, other complex litigation,
and the types of claims asserted in the action; (iii) counsel’s knowledge of the
applicable law; and (iv) the resources that counsel will commit to representing the
class.” Sanchez-Knutson, 310 F.R.D. at 542. This Court has already appointed
Caplan Cobb LLP, Radford & Keebaugh, LLC, and Goldstein, Borgen, Dardarian
& Ho as class counsel. Dkt. 276 & Order dated Jul. 28, 2021. All three firms
should be appointed as class counsel with respect to the Settlement Class. They are
each highly experienced in litigating class actions and comparably complex cases,
as well as well-versed in the areas of law at issue here. Ex. 2 ¶¶ 12–27. Each of
these firms have undertaken an enormous amount of work to zealously represent
both the Litigation Class members and the putative Settlement Class members up
to this point in the case, and they will continue to devote whatever resources are
necessary to provide the highest caliber representation possible to the Settlement
Class. Id. ¶ 26. Accordingly, Plaintiffs’ counsel respectfully request that this Court
appoint them as Settlement Class Counsel under Rule 23(g).

17

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 25 of 50

B.

The Settlement Class meets the requirements of Rule 23(b).

In addition to meeting the requirements of Rule 23(a), the Settlement Class
also satisfies the criteria in Rule 23(b)(3) and the requirements of 23(b)(2) with
respect to the non-monetary aspects of the settlement.
1.

The Settlement Class satisfies Rule 23(b)(3).
i.

Common issues of law and fact predominate.

The “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 predominance inquiry asks whether the
common, aggregation-enabling, issues in the case are more prevalent or important
than the non-common, aggregation-defeating, individual issues.” Tyson Foods, Inc.
v. Bouaphakeo, 577 U.S. 442, 453–54 (2016) (internal quotation marks omitted).
In the Eleventh Circuit, the predominance inquiry is “customarily applied . . . on a
claim-by-claim basis.” Battle v. Liberty Nat’l Life Ins. Co., 770 F. Supp. 1499,
1516 n.48 (N.D. Ala. 1991), aff’d 974 F.2d 1279 (11th Cir. 1992).
In certifying the Litigation Class, this Court has already determined that
common issues of fact and law predominate for each of the Plaintiffs’ claims. Dkt.
276 at 21–27. That conclusion holds here, as the predominance inquiry is the same
in the settlement context as in the litigation context. Amchem Prods., Inc., 521 U.S.

18

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 26 of 50

at 623. And the expansion of the Settlement Class to cover individuals affected by
GTL’s inactivity practice nationwide—as opposed to only those individuals who
set up accounts to receive phone calls from prison facilities in Georgia or South
Carolina—does not alter the fact that common issues of fact and law predominate
here. Regardless of the geographic scope of the class, Plaintiffs’ claims remain the
same. And it remains true that those claims can be proven almost entirely through
class-wide evidence from GTL’s records. See dkt. 276 at 21–22. As a result,
common issues of fact and law predominate.
ii.

Class-wide settlement is the superior method for
resolving the claims at issue in this case.

Finally, class treatment here is superior, especially in the context of a
settlement. “[T]he superiority requirement of Rule 23(b)(3) turns on whether a
class action is better than other available methods of adjudication.” Cherry, 986
F.3d at 1304. As this Court has already determined in its certification of the
Litigation Class, class treatment is superior because “pursuing the individual
claims in this case would likely be economically infeasible.” Dkt. 276 at 28 (noting
that GTL took an average of less than $8 from each accountholder); see also Lewis
v. ARS Nat’l Servs., Inc., No. 2:09CV1041-MHT, 2011 WL 3903092, at *4 (M.D.
Ala. Sept. 6, 2011) (“Certification under 23(b)(3) is often appropriate for cases in

19

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 27 of 50

which individual damages are low, thereby providing little incentive for individual
suits.” (citing Amchem Prods., Inc., 521 U.S. at 617)).
Further, the manageability concerns that led this Court to narrow the
geographic scope of the Litigation Class are not relevant in the context of
settlement. As the Supreme Court has held, in the settlement context, “a district
court need not inquire whether the case, if tried, would present intractable
management problems, for the proposal is that there be no trial.” Amchem Prods.,
Inc., 521 U.S. at 620.6 In short, any concerns over the manageability or
administrative feasibility of a nationwide class are not relevant to the resolution of
this Motion, as Plaintiffs are seeking certification of a settlement class, and the
Court will not be tasked with managing a trial.
2.

The Settlement Class also satisfies Rule 23(b)(2) with
respect to the non-monetary relief the settlement provides.

With respect to the non-monetary relief provided for in the settlement, the
Court should also certify the class under Rule 23(b)(2) because GTL “acted or
6

See also In re Checking Acct. Overdraft Litig., 275 F.R.D. 654, 659 (S.D.
Fla. 2011) (“In deciding whether to provisionally certify a settlement class, . . . the
Court need not consider the manageability of a potential trial, since the settlement,
if approved, would obviate the need for a trial.”); Williams v. Mohawk Indus., Inc.,
No. 4:04-CV-03-HLM, 2010 WL 11500531, at *2 (N.D. Ga. Apr. 12, 2010)
(“[A]ny manageability issues that might or might not arise at trial from proving
injury and damages on behalf of the class members are not relevant to certification
of a settlement class.”).
20

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 28 of 50

refused to act on grounds that apply generally to the class, so that final injunctive
relief . . . is appropriate respecting the class as a whole . . . .” Fed. R. Civ. P.
23(b)(2). “[T]he ‘key’ to demonstrating a Rule 23(b)(2) class is ‘the indivisible
nature of the injunctive or declaratory remedy warranted—the notion that the
conduct is such that it can be enjoined or declared unlawful only as to all of the
class members or as to none of them.’” J.M. by & through Lewis v. Crittenden, 337
F.R.D. 434, 453 (N.D. Ga. 2019) (quoting Wal-Mart v. Dukes, 564 U.S. 338, 360
(2011)). In other words, “Rule 23(b)(2) applies only when a single injunction or
declaratory judgment would provide relief to each member of the class.” Dukes,
564 U.S. at 360.
Certification under Rule 23(b)(2) is appropriate here because GTL’s
application of its inactivity policy constitutes an action that applies generally to the
class, as the policy was implemented uniformly nationwide and across the class.
Furthermore, the non-monetary relief provided for in the Settlement Agreement
applies equally to all members of the Settlement Class. This demonstrates that a
single, final order approving of the non-monetary aspects of the settlement could
provide full relief to the class, without the need for any individualized review of
the putative class members’ claims. As a result, the Settlement Class satisfies Rule
23(b)(2) for purposes of preliminary approval of the proposed settlement. E.g.,

21

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 29 of 50

J.M., 337 F.R.D. at 453–54 (certifying class under Rule 23(b)(2) where “one
injunction . . . will provide relief to each member of the class”) (internal quotation
marks omitted); Georgia Advoc. Off. v. Jackson, No. 1:19-CV-1634-WMR-JFK,
2019 WL 8438491, at *7 (N.D. Ga. July 30, 2019), report and recommendation
adopted, No. 119CV01634WMRJFK, 2019 WL 8438493 (N.D. Ga. Sept. 10,
2019) (same).
* * *
For the reasons set forth above, the Settlement Class meets all criteria of
Rule 23(a) and Rule 23(b). This Court should certify the Settlement Class for
purposes of preliminarily approving the proposed settlement.
II.

The Court should preliminarily approve the proposed settlement
because it is fair, reasonable, and provides more than sufficient
benefits to the class members.
Rule 23(e)(2) requires that any class-wide settlement be “fair, reasonable,

and adequate,” and it provides four criteria that this Court must consider in making
that determination. Fed. R. Civ. P. 23(e)(2). As set forth below, the parties’
proposed settlement meets all of these criteria. The parties therefore respectfully
request that this Court preliminarily approve the settlement and direct that notice
be issued to the class.

22

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 30 of 50

A.

The Settlement Class was well represented, and the settlement
resulted from a good-faith and arm’s-length negotiation.

Rule 23(e)(2)(A) and (B) ask whether “the class representatives and class
counsel have adequately represented the class” and whether “the proposal was
negotiated at arm’s length.” Fed. R. Civ. P. 23(e)(2)(A) & (B). As relayed in the
comments to the rule, these criteria “identify matters that might be described as
‘procedural’ concerns, looking to the conduct of the litigation and of the
negotiations leading up to the proposed settlement.” Fed. R. Civ. P. 23 advisory
committee’s note to the 2018 amendments.
When analyzing the adequacy of representation by Plaintiffs and class
counsel, this Court should consider: “(1) whether [the class representatives] have
interests antagonistic to the interests of other class members; and (2) whether the
proposed class’ counsel has the necessary qualifications and experience to lead the
litigation.” In re Equifax Inc. Customer Data Sec. Breach Litig., No. 1:17-MD2800-TWT, 2020 WL 256132, at *5 (N.D. Ga. Mar. 17, 2020), rev’d in part on
other grounds, 999 F.3d 1247 (11th Cir. 2021). With respect to class counsel, “the
focus at this point is on the actual performance of counsel acting on behalf of the
class.” Fed. R. Civ. P. 23 advisory committee’s note to the 2018 amendments.
For the same reasons described above in the context of class certification,
both the class representatives and class counsel have been more than adequate in
23

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 31 of 50

this case. Supra at 16–18. The class representatives have no interests that are
adverse to other members of the Settlement Class. Ex. 2 ¶¶ 84–85. And proposed
class counsel is well qualified to handle the settlement and has extensive relevant
experience. Id. ¶¶ 12–27. Counsel has zealously represented the class to this point
in the case, doggedly pursuing discovery and obtaining certification of a litigation
class. Id. ¶¶ 26, 29–31. Counsel submits that the highly favorable terms of the
proposed settlement—which not only likely obtains full recovery of damages for
Settlement Class members, but also locks in non-monetary relief that prevents
future breaches of contract from further damaging class members—is evidence of
the high quality of their representation of the class. As such, this factor is easily
met, both by the class representatives and by class counsel.
With regard to the negotiation of the settlement, the proposed settlement is
the result of six-and-a-half years of litigation and a negotiation process between
class counsel and GTL’s counsel that took almost a year. Those negotiations were
aided by three formal mediations with Hunter R. Hughes III—the third of which
lasted two days and was not successful until post-mediation negotiations led to
resolution. Id. ¶¶ 33–43. Mr. Hughes has been recognized by numerous
professional organizations as one of the top attorneys and mediators in the country,
and he has offered to provide a declaration attesting to the arm’s-length nature of

24

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 32 of 50

the negotiations in this case. Id. ¶¶ 35, 44. The parties’ arm’s-length settlement
negotiations were also aided by a multi-part, post-settlement arbitration process,
with Mr. Hughes and L. Joseph Loveland, Jr. serving as arbitrators during the
negotiation of the final class settlement agreement. Id. ¶¶ 45–47. Mr. Loveland was
a partner at King & Spalding for decades and has more than 40 years of experience
in complex commercial litigation. Id. ¶ 46. Both he and Mr. Hughes assisted the
parties in resolving a number of disputed issues relating to the finalization of the
settlement agreement. Id.
The facts that the negotiations were aided by three formal mediations and
that a pair of neutral and highly-respected arbitrators resolved a number of
disputed issues regarding the proposed settlement agreement are strong evidence
that the negotiation process here meets the standard of Rule 23(e). See Wilson v.
EverBank, No. 14-CIV-22264, 2016 WL 457011, at *6 (S.D. Fla. Feb. 3, 2016)
(“The very fact of [mediator’s] involvement . . . weighs in favor of approval.”); see
also Fed. R. Civ. P. 23 advisory committee’s note to 2018 amendments (“[T]he
involvement of a neutral or court-affiliated mediator or facilitator in those
negotiations may bear on whether they were conducted in a manner that would
protect and further the class interests.”). That is further underscored by how
favorable the proposed settlement is to the Settlement Class.

25

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 33 of 50

This Court should find that the settlement is procedurally sound, both
because the class was well represented by Plaintiffs and by counsel, and because
the settlement negotiations were conducted appropriately at arm’s length and in
good faith with the best interests of the Settlement Class in mind.
B.

The settlement provides significant benefits to the class.

Next, Rule 23(e)(2)(C) requires a substantive review of the proposed
settlement to ensure that “the relief provided for the class is adequate, taking into
account: (i) the costs, risks, and delay of trial and appeal; (ii) the effectiveness of
any proposed method of distributing relief to the class, including the method of
processing class-member claims; [and] (iii) the terms of any proposed award of
attorney’s fees, including timing of payment.” Fed. R. Civ. P. 23(e)(2)(C).
The parties’ proposed settlement satisfies all of the substantive
considerations outlined in the rule. The settlement would establish a $67 million
settlement fund out of which class members would be paid the full amount of
funds they lost as a result of GTL’s inactivity policy. Given the size of the fund, it
is likely that each class member will actually receive that full refund, rather than a
pro rata share. Ex. 2 ¶¶ 69–70. The Settlement Fund alone is nearly 70% of the
maximum damages that would be available here—a very favorable discount on the
total potential recovery, given that the settlement benefits are guaranteed, will be

26

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 34 of 50

available to class members now, and will avoid the incursion of more attorneys’
fees and expenses. Id. ¶ 63 (calculating maximum breach-of-contract damages as
approximately $96 million). Even after deducting the costs of administering the
settlement, any case-contribution awards, and the attorneys’ fees and costs class
counsel will request, the amount available to class members is nearly 50% of the
maximum potential damages that could be recoverable if this case proceeded to
trial. Id. ¶ 83.
In addition, the non-monetary relief adds significant value to the settlement.
Those non-monetary provisions protect class members through affirmative
disclosures, affirmative assent, and pre-forfeiture notifications—thereby avoiding
future breaches of contract and cutting off a significant amount of potential harm to
class members for at least the next five years. Id. ¶¶ 76–80. Based upon class
counsel’s preliminary analysis and work with Ian Ratner and Samuel Hewitt of B.
Riley Financial Advisors, class counsel estimates that the value of the nonmonetary relief provisions in the settlement approximates $75 million over the next
five years. Id. ¶¶ 79–80.7

7

Class counsel intend to offer detailed expert testimony regarding the value of
the non-monetary benefits of the settlement in connection with their motion for
final approval and motion for attorneys’ fees and expenses.
27

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 35 of 50

Taking the monetary and non-monetary provisions together, the value of the
proposed settlement is approximately $145 million—higher than the approximately
$96 million that Plaintiffs have calculated as their maximum potential damages if
this litigation were to continue. Id. ¶ 81. In other words, this settlement allows
class members to avoid the significant uncertainties and expenses of litigation,
while providing the class with full refunds and meaningful reforms to GTL’s
practices that would be unavailable if they saw this case through trial.
1.

The proposed settlement avoids the costs, risks, and delay of
trial and appeal.

By settling this case, the Class will avoid the uncertainties of litigation,
which are significant here. Continued litigation would almost certainly be
protracted and very expensive, both in terms of attorneys’ fees and expenses. GTL
has fiercely litigated this case with tactics that have resulted in serious delays and
have required the devotion of significant amounts of time by class counsel. Those
tactics have at several points crossed the line into sanctionable behavior, which has
forced class counsel to devote even more time and resources to zealously represent
the class. As a result, the parties have not even finished the discovery process,
more than six years into the case.
Class counsel expect that, without a settlement, GTL would continue to
litigate this case vigorously. Given the stage of litigation here, class counsel
28

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 36 of 50

anticipates that the case could take many years to resolve, as the parties still have
to conclude class discovery, revisit the scope of the litigation class, go through the
process of damages and expert discovery, litigate any summary judgment motion
by GTL, conduct a trial on the merits, and then resolve any damages issues. Then
there would almost certainly be a lengthy appellate process that could itself add
years to the case.
All of these procedural steps would not only delay resolution of the case, but
would also require a substantial amount of attorney hours and litigation expenses.
The proposed settlement allows the class to avoid the remaining delays and costs
of litigation. Class members would receive their refunds now, making the recovery
of higher value to the class members than a refund many years from now. As a
result, this factor weighs in favor of approving the settlement. See In re Equifax
Inc. Customer Data Sec. Breach Litig., 2020 WL 256132, at *7 (finding settlement
provided adequate relief to the class in part because settlement “benefits have
added value by being available now, rather than after years of continued litigation,
because class members can immediately take advantage of settlement benefits
designed to mitigate and prevent future harm”).

29

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 37 of 50

2.

The claims process is simple and, for many Settlement Class
members, automatic.

The parties’ proposed settlement provides an efficient and straightforward
method of distributing benefits to the Settlement Class. The class can essentially be
broken into three groups, each with a simple process for obtaining the amount that
GTL previously retained due to inactivity. First, those class members who have an
active AdvancePay account at the time of final approval of the settlement will
automatically receive an account credit for their full claim amount without the
need to file a claim. Second, those class members who no longer have an active
AdvancePay account can receive a full refund of their claim amount simply by
filling out their contact information on the claim form, signing a verification, and
returning it to the settlement administrator. See Ex. 3 (Decl. of Tiffaney Janowicz)
¶¶ 36–38 & Ex. H thereto. Third, even those class members who no longer have an
active AdvancePay account and who do not return a claim form still have a chance
at recovery under the settlement terms. If any of those class members reactivate
their AdvancePay account within two years of the settlement becoming final, then
GTL will automatically credit their account with their claim amount. This process
is very simple—in two of the three instances, requiring no effort from class
members at all—and provides an efficient way of distributing benefits to the
maximum number of class members.
30

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 38 of 50

3.

The settlement provisions regarding attorneys’ fees are
reasonable.

The proposed settlement contemplates that class counsel may seek, subject
to this Court’s approval, up to 27.5% of the $67 million Settlement Fund
($18,425,000) in attorneys’ fees and up to $250,000 in costs and expenses incurred
in this action. Ex. 1 at 35–36. Those amounts will be paid in addition to GTL’s
obligation to pay the full claim amount for each claiming class member. Id. at 20.
The fee amount is equal to 27.5% of the Settlement Fund amount (although the
fraction of attorneys’ fees of the overall value of the settlement, including nonmonetary benefits, is much smaller), which is well within the 20% to 30% range
found to be reasonable in this circuit for common-fund cases. E.g., In re Equifax,
999 F.3d at 1281 (collecting cases) (“‘The majority of common fund fee awards
fall between 20% to 30% of the fund . . . .’” (quoting Camden I Condo. Ass’n, Inc.
v. Dunkle, 946 F.2d 768, 774 (11th Cir. 1991))); In re Checking Acct. Overdraft
Litig., 830 F. Supp. 2d 1330, 1367 (S.D. Fla. 2011) (noting that “courts nationwide
have repeatedly awarded fees of 30 percent or higher in so-called ‘megafund’
settlements”). Class counsel’s proposed fee is further justified here by the
particularly complex nature of the facts in this case, the complicated procedural
history of this litigation, and the large number of beneficiaries of this settlement

31

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 39 of 50

nationwide. This Court should preliminarily find the attorneys’ fees and expenses
proposed in the settlement are reasonable.
C.

The settlement treats class members equitably.

Next, this Court must consider whether the proposed settlement “treats class
members equitably relative to each other.” Fed. R. Civ. P. 23(e)(2)(D). The
proposed settlement here fairly allocates the benefits of the settlement to members
of the Settlement Class. Each class member has an opportunity to obtain full
recovery of the amount that GTL retained from their accounts due to its inactivity
policy. To the extent that class members’ recovery is reduced in the unlikely event
of exhaustion of the Settlement Fund, those reductions are fairly distributed among
class members. If the fund is exhausted as a result of the affirmative claims
process, then class members’ claim amounts will be reduced pro rata—an
inherently equitable method. Ex. 2 ¶ 71. If the fund is instead exhausted during the
extended automatic credit period, then the opportunity to obtain a credit ends when
the fund runs out. Id. ¶ 72. This treatment is equitable, as affected class members
would have had the same opportunity as all other members to obtain their full
claim amount by submitting a claim form. The extended automatic credit period is,
in effect, an additional benefit for class members who do not take affirmative
action to claim their funds. In sum, the proposed settlement treats all members of

32

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 40 of 50

the Settlement Class equitably, which counsels in favor of finding that the
settlement is fair, reasonable, and adequate.8
D.

The Bennett factors favor preliminary approval.

In addition to the factors enumerated in Rule 23(e)(2), this Court’s
evaluation of the proposed settlement should also be guided by the factors laid out
by the Eleventh Circuit in Bennett. Those factors include: (1) the likelihood of
success at trial; (2) the range of possible recovery; (3) the point on or below the
range of possible recovery at which a settlement is fair, adequate and reasonable;
(4) the complexity, expense and duration of litigation; (5) the substance and
amount of opposition to the settlement; and (6) the stage of proceedings at which
the settlement was achieved. Bennett, 737 F.2d at 986. Many of these factors
overlap with the analysis described above, and together they show that the
proposed settlement is quite reasonable and should be preliminarily approved.
8

Class counsel intends to request a conditional case-contribution award of up
to $25,000 per class representative, requiring GTL to make such payment if the
Eleventh Circuit reverses, vacates, or otherwise revises its decision in Johnson v.
NPAS Sols., LLC, 975 F.3d 1244, 1248 (11th Cir. 2020), to permit casecontribution awards. Ex. 1 at 38. As of the date of this Motion, the Eleventh Circuit
has not issued the mandate in Johnson. This amount is reasonable in light of the
class representatives’ contributions to this case. Ex. 2 ¶ 92. Indeed, “[c]ourts
routinely approve incentive awards to compensate named plaintiffs for the services
they provided and the risks they incurred.” In re Arby’s Rest. Grp., Inc. Data Sec.
Litig., No. 1:17-CV-1035-WMR, 2019 WL 2720818, at *1 (N.D. Ga. June 6,
2019).
33

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 41 of 50

With respect to the first and fourth factors, while Plaintiffs’ claims are
strong, the likelihood of success at trial¾particularly for a nationwide class¾is
uncertain. The only certainty is that, if the parties continued to litigate, this case
would stretch on for many more years and would be very difficult and expensive to
litigate. By contrast, the settlement resolves this case now and provides guaranteed
benefits to a nationwide class—many of which would be unavailable even if this
case did go to trial. Thus, these factors weigh in favor of preliminary approval.
With respect to the second and third factors, as noted above, Plaintiffs have
calculated that the maximum amount of potential damages at trial is approximately
$96 million. Ex. 2 ¶ 63. The Settlement Fund is approximately 70% of that
amount, and considering the value of the non-monetary relief, the total value of the
proposed settlement actually exceeds the maximum amount of damages that might
potentially be available through litigation. As a result, the proposed settlement
amount is more than reasonable, and these factors, too, favor preliminary approval
of the settlement.
With respect to the fifth factor, there is currently not sufficient data to
understand any opposition by absent class members to the settlement, though class
counsel expects the settlement to be quite favorably received. This factor can be re-

34

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 42 of 50

evaluated at the final approval stage, when the Court can consider the number of
class members who objected or opted out of the class.
Finally, with respect to the sixth factor, this settlement was reached at a
point in the case when class counsel had a deep understanding of the underlying
facts and of the potential value of the class members’ claims. Ex. 2 ¶¶ 48–49. At
the same time, class counsel has worked diligently to resolve this case early
enough to save the class members a significant amount of time, fees, and expenses.
This factor counsels in favor of preliminarily approving the settlement.
In sum, each of the Bennett factors that can be evaluated at this stage show
that the proposed settlement is fair, reasonable, and more than adequate.
E.

There are no undisclosed side agreements.

Rule 23(e)(3) requires the parties “file a statement identifying any agreement
made in connection with the proposal.” Here, there are none.
* * *
For the reasons described above, the parties’ proposed settlement meets all
of the criteria for preliminary approval in Rule 23 and those laid out by the
Eleventh Circuit. The settlement framework provides essentially complete relief to
class members by refunding or crediting the full amount of funds lost due to GTL’s
inactivity policy. In addition, it provides non-monetary relief that would be

35

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 43 of 50

otherwise unavailable through litigation and will ensure that GTL reforms the
inactivity policy to avoid similar harms in the future. These substantial benefits
render the settlement fair, reasonable, and more than adequate. This Court should
preliminarily approve the proposed settlement.
III.

The Court should approve the form and plan for disseminating
notice to the class members.
Following preliminary approval, Rule 23(e)(1) requires that the Court

“direct notice in a reasonable manner to all class members who would be bound by
the proposal.” That notice “must contain information reasonably necessary to make
a decision to remain a class member and be bound by the final judgment or opt out
of the action.” In re HealthSouth Corp. Sec. Litig., 334 F. App’x 248, 254 (11th
Cir. 2009) (internal quotation marks omitted).
A.

The Court should adopt the parties’ proposed notice program.

The parties’ proposed notice plan—which was developed in conjunction
with Rust Consulting and Kinsella Media (“Rust”), a legal notification firm with
extensive experience designing large-scale legal notification plans—meets the
criteria of Rule 23. Ex. 3 ¶¶ 1–5 and Ex. A thereto. The proposed summary notices
and long-form notice would be in substantially the same form as Exhibits C–G to
the Janowicz declaration. The summary notice will inform Settlement Class
members of, among other things: the nature of this case and the Plaintiffs’ claims;
36

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 44 of 50

the terms of the proposed settlement; how to make a claim for benefits of the
settlement, if it is approved; how to object to the settlement or opt out of the class;
the existence of class and the provision for payment of attorneys’ fees in the
settlement; the hearing this Court will hold for final approval of the settlement; and
how class members can obtain a long-form notice with more information about the
settlement. Exhibits C–G to Janowicz Declaration (Ex. 3). The proposed notices
provide more than sufficient information to allow class members to determine how
to proceed with respect to the settlement and to meet the requirements of due
process.
Further, the parties’ proposed plan for distributing notice will ensure that as
many potential class members as possible will receive notice of the settlement.
Indeed, the notice plan includes cutting-edge methods to reach approximately 10
million potential class members. The notice program includes providing postcard
notices with postage-prepaid tear-off claims forms for Settlement Class members
for whom GTL’s records contain a physical address. Ex. 3 ¶ 12. Rust will also
update those addresses using the National Change of Address database and remail
returned postcards if a forwarding address is provided or can be traced using
national databases like Transunion. Id. ¶ 13. Rust will also provide notice by email,
including performing a sophisticated skip trace to find email addresses for

37

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 45 of 50

Settlement Class members for whom GTL’s records contain only a phone number
and providing up to eight follow-up emails where it receives notification an email
was not successfully delivered. Id. ¶¶ 9–11. In addition, the parties have agreed
that such notice will be sent to any such accountholders for whom (i) GTL’s
records are inconclusive about the method by which the account was established
and funded or (ii) GTL deleted records that would reflect the method by which the
account was established and funded. Ex. 1 at 49–51.
Moreover, Rust has proposed a robust publication notice media program and
claims-stimulation process that includes digital advertising across multiple
platforms in multiple languages, including Google, Facebook, YouTube,
Instagram, and other platforms, as well as in nationally circulated print
publications likely to be read by class members, id. ¶¶ 23–25, and high-circulation
publications in the highly-affected geographies, id. ¶¶ 21, 23–28. Rust estimates
that the digital advertising alone will be viewed more approximately 124 million
times¾more than a dozen times the size of the Settlement Class. Id. ¶ 28. That
digital advertising will also be targeted using sophisticated demographic tools
designed to ensure that populations most likely to be impacted by the settlement
are more likely to see the digital notices. Id. ¶¶ 29–30. In addition, Rust will
implement an “earned media” program to amplify the notice by providing details
38

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 46 of 50

of the settlement to more than 5,400 traditional media outlets and more than 4,000
national websites. Id. ¶ 32.
The parties respectfully request that this Court approve the proposed notice
plan, as described in the Settlement Agreement (Ex. 1 at 47-62), in the declaration
of Rust Senior Vice President Tiffaney Janowicz (Ex. 3), and as exemplified by
Exhibits C–H to the Janowicz declaration.
B.

The Court should adopt the parties’ proposed settlement
schedule.

Finally, the parties request that this Court set the following proposed
schedule for disseminating notice and holding a final approval hearing:
Event
Settlement Administrator will publish the
Settlement Website
Class notice mailed or emailed (as required
by the Settlement Agreement) to
individuals on the Class Notice List
First Published Class Notice to be
published in Prison Legal News
Reminder Notice emailed to any
individuals on the Class Notice List who
have not submitted a claim form
Second Published Class Notice to be
published in Prison Legal News
Last day for Class Counsel to file Motion
for Attorneys’ Fees, Expenses, and Costs
and Motion for Case-Contribution Awards
Last day for Settlement Class Members to
object or opt out of the Settlement

39

Deadline
21 days after entry of Preliminary
Approval Order
28 days after entry of the
Preliminary Approval Order (the
“Notice Date”)
28 days after entry of the
Preliminary Approval Order
90 days after Notice Date (or
within one week thereof)
30 days prior to Claim Deadline
14 days prior to Opt-Out
Date/Objection Date
60 days after the Notice Date

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 47 of 50

Last day for Settlement Class Members to
submit a Claim Form
Settlement Administrator will provide
counsel for the Parties with a report on the
Opt-Outs, as described in Section X.H of
the Settlement Agreement
Settlement Administrator will provide
counsel for the Parties with a report on the
total number of notices issued under
Settlement Class Notice Program
Settlement Administrator will provide
Class Counsel with a declaration reflecting
that the Settlement Class Notice Program
was executed in accordance with the
Preliminary Approval Order
Last day to file Motion for Final Approval
of Settlement
Fairness Hearing

120 days after the Notice Date
14 days after the Opt-Out Date

14 days after the close of the Class
Notice Period
21 days prior to the Fairness
Hearing

35 calendar days before Fairness
Hearing
At least 180 days after entry of
Preliminary Approval Order

CONCLUSION
For the reasons set forth above, the parties respectfully request that this
Court preliminarily certify the Settlement Class, approve their proposed settlement,
and direct that notice be issued to potential class members. A proposed order
granting this Motion is attached for the Court’s convenience.
[signature on next page]

40

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 48 of 50

Respectfully submitted this 6th day of December, 2021.
/s/ Michael A. Caplan
Michael A. Caplan
James W. Cobb
T. Brandon Waddell
Sarah Brewerton-Palmer
Ashley C. Brown
CAPLAN COBB LLP
75 Fourteenth Street, NE, Suite 2750
Atlanta, Georgia 30309
(404) 596-5600 – Office
(404) 596-5604 – Facsimile
mcaplan@caplancobb.com
jcobb@caplancobb.com
bwaddell@caplancobb.com
spalmer@caplancobb.com
abrown@caplancobb.com
Barry Goldstein, admitted pro hac vice
Linda M. Dardarian, admitted pro hac vice
GOLDSTEIN, BORGEN, DARDARIAN & HO
155 Grand Avenue, Suite 900
Oakland, California 94612
(510) 763-9800
bgoldstein@gbdhlegal.com
ldardarian@gbdhlegal.com
James Radford
Georgia Bar No. 108007
RADFORD & KEEBAUGH, LLC
315 W. Ponce de Leon Ave.
Suite 1080
Decatur, Georgia 30030
(678) 271-0300
james@decaturlegal.com
Plaintiffs’ and Class Counsel
41

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 49 of 50

LOCAL RULE 7.1(D) CERTIFICATION
The undersigned counsel certifies that the foregoing document has been
prepared with one of the font and point selections approved by the Court in
LR 5.1(B).
This 6th day of December, 2021.
/s/ Michael A. Caplan
Michael A. Caplan
Georgia Bar No. 601039
CAPLAN COBB LLP
75 Fourteenth Street, NE, Suite 2750
Atlanta, Georgia 30309
Tel: (404) 596-5600
Fax: (404) 596-5604
mcaplan@caplancobb.com
Plaintiffs’ and Class Counsel

42

Case 1:15-cv-00986-AT Document 326 Filed 12/06/21 Page 50 of 50

CERTIFICATE OF SERVICE
I hereby certify that on this day I caused a true and correct copy of the
foregoing document to be filed with the clerk’s office by this Court’s CM/ECF
system which will serve a true and correct copy of the same upon all counsel of
record.
This 6th day of December, 2021.
/s/ Michael A. Caplan
Michael A. Caplan
Georgia Bar No. 601039
CAPLAN COBB LLP
75 Fourteenth Street, NE, Suite 2750
Atlanta, Georgia 30309
Tel: (404) 596-5600
Fax: (404) 596-5604
mcaplan@caplancobb.com
Plaintiffs’ and Class Counsel

43