Prison Phone Justice

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

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
BENSON GITHIEYA, et al.,
Plaintiffs,
v.

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

GLOBAL TEL LINK CORP.,
Defendant.
[PROPOSED] ORDER GRANTING PLAINTIFFS’ UNOPPOSED MOTION
FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
This matter is before the Court on Plaintiffs’ Unopposed Motion for
Preliminary Approval of Class Action Settlement (the “Motion”) of the abovecaptioned case between 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” or “Defendant”) (the “Action”) as set forth in the Parties’
Settlement Agreement (the “Agreement,” which memorializes the “Settlement”).
See dkt. 326-1.
Having duly considered the filings made in connection with the Motion,
THE COURT HEREBY FINDS AND ORDERS AS FOLLOWS:

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1.

The Court finds that it has jurisdiction over the Action and each of the

Parties for purposes of settlement and asserts jurisdiction over the Class Plaintiffs
and Defendant for purposes of considering and effectuating this Settlement.
2.

Unless defined herein, all defined terms in this Order shall have the

meanings ascribed to them in the Agreement.
3.

Defendant does not oppose the Court’s entry of the proposed

Preliminary Approval Order.
4.

This Court has considered all of the presentations and submissions

related to the Motion and, having presided over and managed this Action, with the
facts, contentions, claims, and defenses as they have developed in these
proceedings, and is otherwise fully advised of all relevant facts in connection
therewith.
I.

Preliminary Certification of the Settlement Class, Class
Representatives, and Class Counsel
5.

For purposes of settlement only, the Court finds that the prerequisites

for a class action under Rules 23(a), (b)(2), and (b)(3) of the Federal Rules of Civil
Procedure have been satisfied in that: (a) the members of the Settlement Class are
so numerous that joinder of all Settlement Class Members in the class action is
impracticable; (b) there are questions of law and fact common to the Settlement
Class; (c) the claims of the Class Plaintiffs are typical of the claims of the
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Settlement Class; (d) the Class Plaintiffs and their counsel have fairly and
adequately represented and protected the interests of Settlement Class Members;
(e) GTL has allegedly acted on grounds that apply generally to the Settlement
Class, such that the non-monetary relief proposed in the Settlement is appropriate
respecting the class as a whole; (f) the questions of law or fact common to
Settlement Class Members predominate over any questions affecting only
individual members; and (g) a class action is superior to other available methods
for the fair and efficient adjudication of the controversy.
6.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the Court

preliminarily certifies, for purposes of settlement only, a Settlement Class defined
as: 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 on or after April 3, 2011, and through and including October 6, 2021.
7.

Specifically excluded from the Settlement Class are the following

persons: employees of GTL and each of their respective immediate family
members; Class Counsel; and the judges who have presided over the Action and
any related cases.

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8.

Plaintiffs’ Motion to Add Parties [dkt. 298] is GRANTED. Class

Plaintiffs Benson Githieya, Darlene Byers, the Estate of Nellie Lockett, Michelle
Mendoza, Sarai Morris, Betty Davis, and Adrian Mohamed are appointed as class
representatives of the Settlement Class. The Court preliminarily finds that each of
the Class Plaintiffs is similarly situated to Settlement Class Members and are
therefore typical of the Settlement Class, and that they will be adequate class
representatives.
9.

This Court finds that the following counsel are experienced and

adequate for purposes of these settlement approval proceedings and appoints them
as Class Counsel: Michael A. Caplan, James W. Cobb, and T. Brandon Waddell of
Caplan Cobb, LLP; James Radford of Radford & Keebaugh, LLC; Barry Goldstein
and Linda M. Dardarian of Goldstein, Borgen, Dardarian & Ho.
II. Preliminary Approval of the Class Settlement
10.

The Court has conducted a preliminary evaluation of the Settlement as

set forth in the Agreement for fairness, adequacy, and reasonableness. Based on
that evaluation, the Court finds there is cause to believe that: (i) the Agreement is
fair, reasonable, and adequate, and within the range of possible approval; (ii) the
Agreement has been negotiated in good faith at arm’s length between experienced
attorneys familiar with the legal and factual issues of this case; and (iii) with

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respect to the forms of notice of the material terms of the Agreement to Settlement
Class Members for their consideration and reaction, that notice is appropriate and
warranted.
11.

Therefore, the Court preliminarily approves the Settlement as fair,

reasonable, and adequate, subject to further consideration by the Court at the
Fairness Hearing. The Settlement is sufficiently fair, reasonable, and adequate to
warrant providing notice to the Settlement Class.
12.

A Fairness Hearing shall be held before this Court on ____________,

at __________ a.m./p.m., at the United States District Court for the Northern
District of Georgia, Richard B. Russell Federal Building, 2211 United States
Courthouse, 75 Ted Turner Drive, SW, Atlanta, GA 30303, to determine whether
the proposed Settlement of the Action on the terms and conditions provided for in
the Settlement is fair, reasonable, and adequate to the Settlement Class and should
be finally approved by the Court; to determine whether a Final Approval Order
approving the Settlement should be entered; to determine whether the plan for
distribution of claims should be approved; to determine any amount of attorneys’
fees, costs, and expenses that should be awarded to Class Counsel; to determine
any amount of conditional case-contribution awards to be awarded to the Class
Plaintiffs for their service as the class representatives for the Settlement Class; to

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hear any objections by Settlement Class Members to the Settlement, claims
process, any award of attorneys’ fees, costs, and expenses to Class Counsel, or any
conditional Case-Contribution Awards to the Plaintiffs; and to consider such other
matters as the Court may deem appropriate. The Fairness Hearing may be
postponed, adjourned, or continued by order of the Court without further notice to
the Settlement Class. After the Fairness Hearing, the Court may enter a Final
Approval Order in accordance with the Agreement that will adjudicate the rights of
the Settlement Class Members (as defined in the Settlement) with respect to the
claims being settled.
13.

Pursuant to Rule 23(c) of the Federal Rules of Civil Procedure, the

Court appoints for settlement purposes only Rust Consulting, Inc. (“Settlement
Administrator”) to supervise and administer the notice procedure as well as the
processing of claims as more fully set forth in the Agreement.
III. Notice to Class Members
14.

Under Rule 23(c)(2), the Court finds that the content, format, and

method of disseminating notice under the Settlement Class Notice Program, as set
forth in the Motion, the Declaration of Tiffaney Janowicz filed on December 6,
2021, and the Settlement Agreement, is the best notice practicable under the
circumstances and satisfies all requirements provided in Rule 23 and due process.

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The Court approves such notice, and hereby directs that such notice be
disseminated no later than 28 days following the entry of this Order, in the manner
set forth in the proposed Agreement and the Declaration of Tiffaney Janowicz, to
Settlement Class Members under Rule 23(e)(1).
15.

The Court approves the form of the Notices and Claim Form attached

as Exhibits C, D, E, F, G, and H to the Declaration of Tiffaney Janowicz, dkt. 3263. The Court expressly authorizes and instructs the Settlement Administrator to
send the Reminder Notice, as provided in Section X.A.viii of the Agreement.
16.

The Settlement Administrator shall send the CAFA Notice required

by 28 U.S.C. § 1715 to the appropriate federal and state officials as identified in 28
U.S.C. § 1715(a) within 10 days after the Motion for Preliminary Approval is filed
with the Court.
17.

The Settlement Administrator will provide to Class Counsel no later

than 21 days prior to the Fairness Hearing, a declaration reflecting that the
Settlement Class Notice Program has been executed in accordance with the
Settlement Agreement and Preliminary Approval Order, which will be filed with
the Court.
18.

Settlement Class Members who wish to either object to the Settlement

or request to be excluded from it must do so by the Objection Date and Opt-Out

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Date of ______________, 2022 which are both 60 calendar days after the Notice
Date. Settlement Class Members may not both object and opt out. If a Settlement
Class Member submits both an Opt-Out Request and an Objection, the Opt-Out
Request will be controlling.
19.

To submit an Opt-Out Request, a Settlement Class Member must

follow the directions in the Notice and send a compliant request to the Settlement
Administrator at the address designated in the Class Notice by the Opt-Out Date.
In the Opt-Out Request, the Settlement Class Member must state his or her full
name, address, and telephone number, and must state in writing that he or she
wishes to be excluded from the Settlement. No Opt-Out Request will be valid
unless all of the information described above is included. No Settlement Class
Member, or any person acting on behalf of or in concert or participation with that
Settlement Class Member, may exclude any other Settlement Class Member from
the Settlement Class; however, nothing herein shall prevent Settlement Class
Members from obtaining the assistance of another, such as a lawyer or family
member, in preparing or submitting any individual Opt-Out Request.
20.

If a timely and valid Opt-Out Request is made by a member of the

Settlement Class, then that person will not be a Settlement Class Member, and the

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Agreement and any determinations and judgments concerning it will not bind the
excluded person.
21.

All Settlement Class Members who do not opt out in accordance with

the terms set forth in the Agreement will be bound by all proceedings, orders, and
judgments in the Action, even if such Settlement Class Member has previously
initiated or subsequently initiates individual litigation or other proceedings
encompassed by the Release.
22.

To object to the Settlement, Settlement Class Members must follow

the directions in the Notice and file a written objection with the Court by the
Objection Date. In the written objection, the Settlement Class Member must state
his or her full name, address, email address (if any), and the phone number(s)
associated with the Settlement Class Member’s AdvancePay Account(s) during the
Class Period. An objecting Settlement Class Member must also clearly state in
detail the legal and factual ground(s) for their objection, and whether they intend to
appear at the Fairness Hearing on their own behalf or through counsel. Any
documents that the Settlement Class Member wishes the Court to consider must
also be attached to the objection. If the Settlement Class Member is represented by
counsel, the objection shall provide such counsel’s name, address, telephone
number, and e-mail address. No objection will be valid unless all of the

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information described above is included. Copies of all papers filed with the Court
must be simultaneously delivered to Class Counsel and counsel for Defendant. The
Parties will have the right to depose any objector as to the basis and circumstances
of his or her objection and to assess the objector’s standing.
23.

Any response to an objection shall be filed with the Court no later

than 7 days prior to the Fairness Hearing.
24.

Any Settlement Class Member who fails to timely raise an objection

to the Settlement or who fails to otherwise comply with the requirements for
objections set forth in Section XII.A of the Agreement shall be foreclosed from
seeking any adjudication or review of this Settlement.
25.

Any attorney hired by a Settlement Class Member for the purpose of

objecting to (a) the proposed Settlement, (b) the Attorneys’ Fees, Expenses, and
Costs award, and/or (c) the Case-Contribution Awards and/or who intends to make
an appearance at the Fairness Hearing shall file with the Clerk of the Court and
provide to the Settlement Administrator (who shall forward it to Class Counsel and
Defendant’s Counsel) a notice of intention to appear no later than the Objection
Date or as the Court may otherwise direct.
26.

The Settlement Administrator shall establish a post office box and

email address in the name of the Settlement Administrator to be used for receiving

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Opt-Out Requests, Claim Forms, and any other communications from Settlement
Class Members, and providing that only the Settlement Administrator, Class
Counsel, Defendant’s Counsel, the Court, the Clerk of the Court, and their
designated agents shall have access to this post office box and email account,
except as otherwise provided in this Settlement Agreement.
27.

The Settlement Administrator shall also create and maintain the

Settlement Website consistent with the terms of Section X.C of the Agreement,
including that Class Members shall be permitted to submit Claim Forms, Opt-Out
Requests, and any other communications to the Settlement Administrator via the
Settlement Website. The Settlement Administrator shall make that Website
publicly available no later than 21 days after entry of the Preliminary Approval
Order, and it shall be maintained until the conclusion of the Class Notice Period.
28.

Class Counsel shall file their Motion for an Award of Attorneys’ Fees,

Expenses, and Costs and Motion for Case-Contribution Awards to the Class
Plaintiffs at least 14 days prior to the Objection Date.
29.

The Settlement Administrator shall provide the final Opt-Out List to

Class Counsel and Defendant’s Counsel no later than seven days after the Opt-Out
Date, and then file with the Court the Opt-Out List with an affidavit attesting to the

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completeness and accuracy thereof, no later than five days thereafter or on such
other date as the Parties or Court may direct.
30.

All Settlement Class Members are preliminarily enjoined from (i)

filing, commencing, prosecuting, intervening in, or participating as plaintiff,
claimant, or class member in any other lawsuit or administrative, regulatory,
arbitral, or other proceeding in any jurisdiction based on the Released Claims; (ii)
filing, commencing, participating in, or prosecuting a lawsuit or administrative,
regulatory, arbitral, or other proceeding as a class action on behalf of any member
of the Settlement Class who has not timely excluded himself or herself (including
by seeking to amend a pending complaint to include class allegations or seeking
class certification in a pending action), based on the Released Claims; or (iii)
attempting to effect Opt-Outs of a class of individuals in any lawsuit or
administrative, regulatory, arbitral, or other proceeding based on, relating to, or
arising out of the claims and causes of action or the facts and circumstances giving
rise to the Action and/or the Released Claims. Notwithstanding the foregoing, this
provision, and any other provision of the Settlement Agreement, does not prevent
members of the Settlement Class from participating in any action or investigation
initiated by a state or federal agency.

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31.

Pending the final determination of whether the Settlement should be

approved, all pre-trial proceedings and briefing schedules in the Action are stayed.
If the Settlement is terminated or final approval does not for any reason occur, the
stay will be immediately terminated.
32.

If the Settlement is not approved or consummated for any reason

whatsoever, the Settlement and all proceedings in connection with the Settlement
will be without prejudice to the right of Defendant or the Class Plaintiffs to assert
any right or position that could have been asserted if the Agreement had never
been reached or proposed to the Court. In such an event, the Parties will return to
the status quo ante in the Action, and the certification of the Settlement Class will
be deemed vacated. The certification of the Settlement Class for settlement
purposes, or any briefing or materials submitted seeking certification of the
Settlement Class, will not be considered in connection with any subsequent class
certification decision.
33.

The Agreement and any and all negotiations, documents, and

discussions associated with it, will not be deemed or construed to be an admission
or evidence of any violation of any statute, law, rule, regulation, or principle of
common law or equity, or of any liability or wrongdoing, by Defendant, or the
truth of any of the claims, and evidence relating to the Agreement will not be

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discoverable or used, directly or indirectly, in any way, whether in the Action or in
any other action or proceeding, except for purposes of demonstrating, describing,
implementing, or enforcing the terms and conditions of the Agreement, this Order,
and the Final Approval Order.
34.

Counsel are hereby authorized to use all reasonable procedures in

connection with approval and administration of the Settlement. The Court reserves
the right to approve the Agreement with such modifications, if any, as may be
agreed to by the Parties without further notice to the members of the Class.
35.

Accordingly, the following are the deadlines by which certain events

must occur:
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

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Deadline
21 days after entry of the
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

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Last day for Settlement Class Members to
object or opt out of the Settlement
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 send under the
Settlement Class Notice Program
Last day to file Motion for Final Approval of
Settlement
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
Fairness Hearing
36.

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

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

At least 180 days after entry of
Preliminary Approval Order

The Court shall maintain continuing jurisdiction over these

proceedings for the benefit of the Settlement Class defined in this Order.

IT IS SO ORDERED this ____ day of __________, 2021.

___________________________
Hon. Amy Totenberg
United States District Court Judge

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